2103046 (Refugee) - [2021] AATA 4151

2103046 (Refugee) [2021] AATA 4151 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:2103046

COUNTRY OF REFERENCE: Ethiopia
MEMBER:Jason Pennell
DATE:17 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second, third and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 17 September 2021 at 7.56am

CATCHWORDS

REFUGEE – protection visa – Ethiopia – Federal Circuit Court remittal – race – Tigrayan – imputed political opinion – suspected Ginbot 7 political party member – opposition to the Tigray People’s Liberation Front (TPLF) – support for community associations – attacks by TPLF – arrests – torture – fear of killing – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998)
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
V v MIMA (1999) 92 FCR 355

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Ethiopia, applied for the visas on 21 August 2014 and the delegate refused to grant the visas on 20 June 2016 on the basis that the applicants are not persons to whom Australia owes protection obligations.
On 7 June 2019 the Tribunal (differently constituted) affirmed the delegate’s decision not to grant the applicants protection visas on the basis that they are not persons to whom Australia owes protection obligations. By an order made [in] February 2021 the Federal Circuit Court of Australia (FCCA) remitted the application for reconsideration by the Tribunal in accordance with law.
[The applicant] appeared before the Tribunal on 9 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, [Employer A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages. 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 2103046 (Refugee)

Details

AGLC: 2103046 (Refugee) [2021] AATA 4151
Case: [2021] AATA 4151
Decision Date: 17 September 2021

CaseChat Overview and Summary

The applicant, an Ethiopian national of Tigrayan ethnicity, sought review of a decision by the Minister to refuse to grant a protection visa. The Federal Circuit Court had previously remitted the matter for redetermination. The applicant claimed to fear persecution due to his race and an imputed political opinion, alleging he was a suspected member of the Ginbot 7 political party and opposed to the Tigray People’s Liberation Front (TPLF). He asserted that he had been targeted by the TPLF, including through attacks, arrests, and torture, and feared he would be killed if returned to Ethiopia.

The primary legal issue before the Court was whether the applicant had established a well-founded fear of persecution for a Convention reason, namely race or imputed political opinion, as defined by the *Migration Act 1958* (Cth). This required the Court to assess the applicant's claims of past persecution and the real chance of future persecution, considering the objective circumstances in Ethiopia, particularly concerning individuals of Tigrayan ethnicity and those perceived as opposing the TPLF.

The Court considered the evidence presented by the applicant, including his personal account of events and country information regarding the situation in Ethiopia. It applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and *Chan v Minister for Immigration and Ethnic Affairs*, focusing on whether the applicant's fear was subjectively genuine and objectively reasonable. The Court found that the applicant's claims of being targeted due to his Tigrayan race and imputed political opinion, including his alleged association with community groups and opposition to the TPLF, were credible and supported by the available country information. The Court concluded that there was a real chance the applicant would suffer harm amounting to persecution if returned to Ethiopia.

The Court set aside the Minister's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.

Orders