2104954 (Refugee) - [2025] ARTA 853

2104954 (REFUGEE) [2025] ARTA 853 (25 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2104954
Tribunal:General Member Genevieve Hamilton
Date:25 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

General Member G Hamilton

Statement made on 25 March 2025 at 2:53 pm
CATCHWORDS
REFUGEE – protection visa – Iran – arrival by boat – statutory bar and later court decisions – two applications both valid – religion and political opinion – apostate from Islam and returned failed asylum seeker – mistreatment during military service – threat to be sent to another country to fight there – stabbing not linked to fear of future harm – summoned to court because of relationship with married woman – unlawful departure – family harassed and monitored – country information – inconsistent claims and evidence and unpersuasive explanations – no public renunciation of Islam – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 46A(1), 48A, 65(1), 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is a review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australian at [Location] by boat without a visa [in] May 2013. On 13 June 2013 he was granted a short temporary Class UJ Subclass 499 (Humanitarian Stay) visa and associated a Class WE Subclass 050 Bridging Visa E. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival.
The Minister lifted the s s46A(1) bar to permit the applicant, as an unauthorised maritime arrival, to apply for a further protection visa. The applicant lodged a protection visa application in July 2017 (the first application). This application is undecided.
Subsequent jurisprudence inadvertently caused confusion about the validity of the application. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at [Location] during the period the applicant arrived, was not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). The Department notified the applicant that his application was therefore invalid due to s91K because he had failed to leave Australia after his subclass 449 visa ceased. The bar was purportedly lifted, and the applicant invited to apply for another protection visa.
The applicant lodged another…

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 2104954 (Refugee)

Details

AGLC: 2104954 (Refugee) [2025] ARTA 853
Case: [2025] ARTA 853
Decision Date: 25 March 2025

CaseChat Overview and Summary

The applicant, who arrived in Australia by boat, sought a protection visa, claiming that his life in Iran was threatened due to his apostasy from Islam and his military service. The Refugee Review Tribunal (RRT) had previously declined to grant him a visa, and he appealed to the Administrative Appeals Tribunal (AAT). The AAT was required to determine whether the Tribunal's decision was legally sound, considering the applicant's claims of persecution due to his religious beliefs, his treatment in the military, and the potential consequences of his relationship with a married woman. The AAT also had to evaluate the applicant's credibility and the consistency of his claims with the country information provided.

The AAT found that the applicant's claims were inconsistent with the available country information and lacked credibility. The Tribunal noted that the applicant had not provided any evidence of public renunciation of Islam, nor had he demonstrated a real risk of significant harm that would exempt him from the statutory bar on protection visa applications. The Tribunal highlighted that the applicant's claims about mistreatment in the military and the stabbing incident were not substantiated and did not relate to his fear of future harm. Furthermore, the Tribunal found the applicant's explanation for his unlawful departure from Iran and his relationship with the married woman unconvincing. The AAT concluded that the Tribunal's decision to affirm the refusal of a protection visa was correct.

Given the findings, the AAT affirmed the decision of the Tribunal not to grant the applicant a protection visa. The AAT emphasized that the applicant's claims were inconsistent with the country information and lacked credibility, and that there was no basis to conclude that he would face significant harm in Iran that would warrant a protection visa.

The final orders of the AAT were that the decision of the Tribunal not to grant the applicant a protection visa was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Under s 36(2B) Australia does not have complementary protection obligations where:·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or·the risk is one faced by the population of the country generally and not by the applicant personally.CLAIMS AND EVIDENCE In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The applicant arrived in Australia by boat and was interviewed in May 2013. At the beginning of the interview he was cautioned that the interview was his opportunity to give reasons why he should not be removed from Australia, and that he should give true and correct answers, as if he gave different information in future it could raise doubts about credibility. His privacy would be protected and the information would not be give to the authorities in Iran, unless he was being removed from Australia in which disclosure to the foreign government would be necessary. According to the record of the interview the applicant said he was born in Iran in [Year] and had always lived in Tehran. He said he has an Iranian birth certificate and national identity document. He also has an Iranian military service card issued in [Year], and an Iranian driver licence. He completed high school in [Year] at [School]. During his military service he trained for two months in Kermanshah and then he was a [military task 1]. He only did eight months of military service. Asked why this was, he said his father was in the war as a [military task 2] so his sons have less service. Before and after service he worked as [an occupation]. His parents, and [brother] born [Year] live together in Tehran. The applicant said he left Iran because it was not safe. Asked if anything happened to him he said he was threatened, and someone stabbed him in the [body part 1] nearly fatally in July or August 2012. He was summonsed to the Court so he had to go on the run. Asked why he was summoned he said the husband of a woman he had a relationship with, who did not tell him she was married, lodged a complaint against him, and there was a Court order for him to be arrested. He would be stoned or imprisoned for a long time. Cases of women with husbands were very sensitive and incurred severe sentences. Asked if he had ever been arrested or detained by police or security organsiations, the applicant replied in the negative. Asked if the police and security or intelligence organsiations had an impact on his day to day life, he replied in the negative.

Decision

Reasons for decision

The applicant has a long-term partner who is an Australian citizen. He may therefore wish to engage with the Department concerning the compassionate circumstances affecting her, that may warrant the Minister intervening to substitute the Tribunal’s decision with one more favourable. DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Representative: Ms Shahen Wheatley (MARN: 0701208)Date of hearing: 20 January 2025

Ratio Decidendi

Legal Principle Established

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