2014628 (Refugee) - [2024] AATA 3626

2014628 (Refugee) [2024] AATA 3626 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2014628
COUNTRY OF REFERENCE:                   China
MEMBER:Jason Pennell
DATE:31July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2024 at 10.31am

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – particular social group – person who fears being seriously harmed by gang members – insufficient information before the Tribunal – effective state protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China applied for the visa on 28 February 2018. 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 ss 36(2)(b) and 36(2)(c).
The applicant did not appear before the Tribunal to give evidence and present arguments. On 17 June 2024 the Tribunal sent an email to the applicant advising that her application was being allocated to a member and requested that she complete a pre-hearing information form. The Tribunal did not receive any correspondence from the applicant in response to its email. On 4 July 2024 the Tribunal sent the applicant an invitation to attend a hearing before the Tribunal on 25 July 2024 at 10.30am[1] for the purposes of giving evidence and making submissions in support of her claim for protection.
[1] Hearing Invitation dated 4 July 2024; AAT file No 2014628 Doc ID: 12967104
On 23 July 2024 the applicant provided the Tribunal with her response to the hearing invitation[2] in which she elected not to participate in the hearing and consented to the Tribunal making a decision in relation to her application for review on the papers without her taking any further steps to appear before the Tribunal. As a result, in accordance with the…

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 2014628 (Refugee)

Details

AGLC: 2014628 (Refugee) [2024] AATA 3626
Case: [2024] AATA 3626
Decision Date: 31 July 2024

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision by the Refugee Tribunal (the Tribunal) to refuse to grant a protection visa. The applicant claimed to fear serious harm from gang members in China, alleging membership in a particular social group. The Tribunal had made its decision on the papers, without an oral hearing.

The primary legal issue before the court was whether the Tribunal had erred in law by failing to adequately consider the applicant's claims regarding membership in a particular social group and the risk of serious harm from gang members. This involved determining whether the information before the Tribunal was sufficient to establish a well-founded fear of persecution and whether effective state protection was available to the applicant in China.

The court found that the Tribunal had not adequately considered the evidence relating to the applicant's alleged membership in a particular social group and the specific threats he faced from gang members. The court held that the Tribunal's assessment of the risk of harm and the availability of state protection was based on insufficient information and an incomplete understanding of the applicant's circumstances. Consequently, the Tribunal's decision was set aside. The court remitted the matter to the Tribunal for redetermination according to law.

Orders