2105061 (Refugee) - [2024] AATA 4392

2105061 (Refugee) [2024] AATA 4392 (8 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)
CASE NUMBERS:  2105061 & 2405243
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Mara Moustafine
DATE:8 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 September 2024 at 10:08am
CATCHWORDS
REFUGEE – protection visa – Nepal – arrival by sea – considered as unauthorised maritime arrival at the time – statutory bars and court judgements affecting status and applications – reviews of two valid applications combined – claim of fear of harm from Maoists for not paying demanded donations discontinued – fear of harm from smugglers for publishing report about their activities – vague, inconsistent and implausible claims and evidence, and no copy of report provided – visa applications to other countries and passport with different details not declared – authenticity of documents – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 46A, 65, 91K, 427(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP [2018] FCAFC 178
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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
APPLICATIONS FOR REVIEW

These are applications for review of two separate reviewable decisions in respect of the same non-citizen, made by delegates of the Minister for Home Affairs on 10 August 2022 and 22 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of Nepal and is [Age] years old.
According to Departmental records, the applicant arrived in Australia [in] May 2013 by boat at Darwin and was considered to be an unauthorised maritime arrival (UMA) at the time. He was granted a UJ-449 visa on 11 July 2013. On 4 July 2016, the applicant was advised that the Minister had lifted the s 46A bar and he was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). The applicant applied for a SHEV on 26 September 2016 (the first SHEV application). Following the Full Federal Court judgment in DBB16 v MIBP [2018] FCAFC 178 of 6 August 2018, the applicant was found not to be a UMA but a Direct Entry Person. At that stage it was thought that the grant of the Class UJ-449 ‘Temporary safe haven visa’ meant that the applicant was subject to the bar in s 91K and therefore the 2016 SHEV application was invalid and could not be considered.…

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 2105061 (Refugee)

Details

AGLC: 2105061 (Refugee) [2024] AATA 4392
Case: [2024] AATA 4392
Decision Date: 8 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed two decisions made by delegates of the Minister for Home Affairs to refuse the applicant, a citizen of Nepal, a protection visa. The applicant arrived in Australia in May 2013 as an unauthorised maritime arrival and was subsequently granted a temporary visa. Due to complex statutory and judicial developments concerning his status and eligibility, the applicant made two separate applications for a Safe Haven Enterprise visa, leading to two distinct refusal decisions which were consolidated for this review.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available to him in Nepal. Specifically, the Tribunal had to assess the credibility of his claims of fear from Maoists for not paying donations and from smugglers for publishing a report about their activities, as well as consider the implications of his applications for visas in other countries and the authenticity of provided documents.

The Tribunal found the applicant's claims to be vague, inconsistent, and implausible, noting the absence of a copy of the report he claimed to have published. Furthermore, the applicant's failure to declare previous visa applications to other countries and the discrepancies in his passport details were considered significant. Applying the principles of the Migration Act 1958 (Cth), particularly sections 5H and 5J concerning the definition of a refugee and a well-founded fear of persecution, the Tribunal concluded that the applicant had not established a genuine fear of persecution that would warrant the grant of a protection visa. The Tribunal also considered the possibility of relocation within Nepal and the availability of state protection, finding these insufficient to establish a well-founded fear.

Consequently, the Tribunal affirmed the decisions of the Minister's delegates to refuse to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

These are applications for review of two separate reviewable decisions in respect of the same non-citizen, made by delegates of the Minister for Home Affairs on 10 August 2022 and 22 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND The applicant claims to be a citizen of Nepal and is [Age] years old. According to Departmental records, the applicant arrived in Australia [in] May 2013 by boat at Darwin and was considered to be an unauthorised maritime arrival (UMA) at the time. He was granted a UJ-449 visa on 11 July 2013. On 4 July 2016, the applicant was advised that the Minister had lifted the s 46A bar and he was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). The applicant applied for a SHEV on 26 September 2016 (the first SHEV application). Following the Full Federal Court judgment in DBB16 v MIBP [2018] FCAFC 178 of 6 August 2018, the applicant was found not to be a UMA but a Direct Entry Person. At that stage it was thought that the grant of the Class UJ-449 ‘Temporary safe haven visa’ meant that the applicant was subject to the bar in s 91K and therefore the 2016 SHEV application was invalid and could not be considered. On 8 November 2019, the Minister made a determination to lift the s 91K bar to allow persons affected by the DBB16 judgment and related matters to apply for a visa. The applicant applied for another SHEV on 21 October 2020 (the second SHEV application). Subsequent to a judgment of the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 on 4 May 2021, the Department reassessed the application made by the applicant on 22 September 2016 and determined it to be valid. On 10 August 2022 a delegate of the Minister for Home Affairs refused to grant the applicant a SHEV visa on his second application and on 22 February 2024 a delegate of the Minister for Home Affairs refused to grant the applicant a SHEV visa on his first application. In view of the above circumstances, which have resulted in the applicant having two separate reviewable decisions made by delegates of the Minister in respect of the same non-citizen, the Tribunal has combined the two reviews pursuant to s 427(2). As detailed further below, the applicant was invited to appear before the Tribunal at a joint hearing of the two separate applications to give evidence and present arguments. CLAIMS AND EVIDENCE The first Safe Haven visa application (SHEV) According to his first SHEV application form, the applicant was born on [Date] in [Village], Baglung district of Nepal. The applicant speaks, reads, and writes in Nepali and English. He identified his ethnicity as Nepali and his religion as Hindu. He completed secondary school in [Year] and worked as owner/manager of a [business] ([Year]-[Year]) and as a journalist on the [Newspaper] ([Year]-[Year]). He married in [Year] and his wife is in Nepal. The applicant’s parents and [brothers] are living in Nepal. The applicant departed Nepal for [Country 1] [in] February 2013 legally on his own passport then flew to [Country 2], where his passport was taken by the agent who arranged his travel to Australia by boat. He arrived in Darwin [in] May 2013. He stated that he had never been refused visas to any country other than Australia.

Evidence

Evidence Before The Court

In view of the above circumstances, which have resulted in the applicant having two separate reviewable decisions made by delegates of the Minister in respect of the same non-citizen, the Tribunal has combined the two reviews pursuant to s 427(2). As detailed further below, the applicant was invited to appear before the Tribunal at a joint hearing of the two separate applications to give evidence and present arguments. CLAIMS AND EVIDENCE The first Safe Haven visa application (SHEV) According to his first SHEV application form, the applicant was born on [Date] in [Village], Baglung district of Nepal. The applicant speaks, reads, and writes in Nepali and English. He identified his ethnicity as Nepali and his religion as Hindu. He completed secondary school in [Year] and worked as owner/manager of a [business] ([Year]-[Year]) and as a journalist on the [Newspaper] ([Year]-[Year]). He married in [Year] and his wife is in Nepal. The applicant’s parents and [brothers] are living in Nepal. The applicant departed Nepal for [Country 1] [in] February 2013 legally on his own passport then flew to [Country 2], where his passport was taken by the agent who arranged his travel to Australia by boat. He arrived in Darwin [in] May 2013. He stated that he had never been refused visas to any country other than Australia. The applicant’s protection claims, as set out in his application form, can be summarised as follows:a.He left Nepal to save his life from the Maoists, who targeted him and threatened his life for not supporting them by paying the requested donation and from the underground smugglers, who targeted him for publishing a newspaper report about the smuggling of [commodity].b.He fears his life will be in danger if he returns to Nepal. The Maoists will abduct, torture, and possibly kill him for not paying the demanded donation. The smugglers might kill him because he published news against them. Because of the constant efforts of journalists, the smuggling of [commodity] has stopped but the smugglers are against the journalists who wrote against them. c.The authorities will not protect him and he will not be able to relocate within Nepal. He reported these threats to the local police, but they ignored them as they cannot act against the Maoists because they are ruling the country. The smugglers are an underground group and bribe the authorities. In a covering submission dated 20 September 2016, the applicant’s representative posited that the applicant was a victim of the Maoists and [commodity] smugglers. As a businessman operating a [business] in Kathmandu, he was contacted by the Maoists for donations. On some occasions he provided small donations but refused to do so when asked for a ‘huge amount’ and his life was threatened. He also worked as the Kathmandu correspondent for the [Newspaper] based in [Location]. During this time, he published news about the smuggling of [commodity] and subsequently received several threats that he would be killed within a week. He was in a hideout until the day he fled from Nepal.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Mara MoustafineMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution.(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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