2014479 (Refugee) - [2024] AATA 4217

2014479 (Refugee) [2024] AATA 4217 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2014479

COUNTRY OF REFERENCE: Republic of China (Taiwan)
MEMBER:Jason Pennell
DATE:2 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 August 2024 at 4.01pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – particular social group – lesbian – fear of physical assault – threats by a village chief – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant, who claims to be a citizen of Taiwan, applied for the visa on 16 April 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, pursuant to s 36(2)(b) and s 36(2)(c).
3.The applicant did not appear before the Tribunal to give evidence and present arguments. On 3 June 2024 the Tribunal sent an email[1] to the applicant advising that a Tribunal member had been allocated to her application for review and requesting that she complete a pre-hearing information form. The Tribunal did not receive any correspondence from the applicant in response to the email. On 8 July 2024 the Tribunal sent the applicant an invitation to attend a hearing before the Tribunal on 29 July 2024 at 10.30am[2] for the purposes of giving evidence and making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2014479 (Refugee)

Details

AGLC: 2014479 (Refugee) [2024] AATA 4217
Case: [2024] AATA 4217
Decision Date: 2 August 2024

CaseChat Overview and Summary

The applicant, a citizen of Taiwan, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to fear persecution in Taiwan due to their status as a lesbian, alleging threats of physical assault by a village chief. The Administrative Appeals Tribunal had affirmed the Minister's decision.

The primary legal issue before the Federal Circuit Court was whether the applicant had established a well-founded fear of persecution for reasons of membership of a particular social group, namely being a lesbian, and whether the Tribunal had erred in its assessment of this claim. The court was required to consider the evidence presented regarding the alleged threats and the general situation for lesbians in Taiwan.

The court affirmed the Tribunal's decision, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's stated fear, the court found the evidence insufficient to demonstrate a real chance of harm amounting to persecution. The court noted that the alleged threats, while concerning, were not substantiated by sufficient evidence to establish a pattern of persecution or a failure of state protection. The court also considered the delay in the applicant's claim for protection, which, while not determinative, contributed to the overall assessment of the credibility and substance of the fear. The application for review was dismissed.

Orders