2117239 (Refugee) - [2024] AATA 4289

2117239 (Refugee) [2024] AATA 4289 (20 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2117239
COUNTRY OF REFERENCE:                   India
MEMBER:Nicole Burns
DATE:20 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
·that the first named applicant and the second named applicant satisfy s 36(2)(a) of the Migration Act.

Statement made on 20 March 2024 at 5:19pm

CATCHWORDS
REFUGEE – protection visa – India – membership of particular social group – fear of harm from ex-husband of first applicant mother/father of second applicant son – control, threats, abuse and violence during marriage, extortion of parents and continued demands and threats via family members – drug use, criminal activities, including claimed murder of brother, and links to corrupt police – applicant’s mental health and cognitive functioning – detailed and consistent evidence, with supporting statements and medical reports – country information – divorced women more vulnerable to gender-based violence – limited police and judicial resources – passport expired – entering Nepal possible without passport but would not remove possibility of being found by ex-husband – application for another country’s visa in early stages and no existing right to enter and reside – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (3)(c)(vi), (4)(a), (c), 5K, 5L, 5LA(2), 36(2)(a), (3), (4)(a), 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Respondent A (1995) 57 FCR 309
MIMAC v SZRHU [2013] FCAFC 91
Morato v MILGEA (1992) 39 FCR 401
SZTOX v MIBP [2015] FCAFC 77
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 Home Affairs on 4 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are mother, the first named applicant (the applicant) (aged [Age]) and son, the second named applicant (aged [Age]) who are citizens of India. They came to Australia [in] July 2009 as dependants of the applicant’s then husband’s ([Mr A]) student (Subclass 572) visa. They applied for the protection visas on 17 March 2017.
The applicants appeared before the Tribunal on 14 December 2023 and 11 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
In summary the applicant claims to fear serious harm on return to India at the hands of her first husband, [Mr B], who was violent towards her and her son in…

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 2117239 (Refugee)

Details

AGLC: 2117239 (Refugee) [2024] AATA 4289
Case: [2024] AATA 4289
Decision Date: 20 March 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman and her son, who claimed to fear harm from the applicant's ex-husband. The applicants alleged a history of control, threats, abuse, and violence during the marriage, as well as extortion of the applicant's parents and continued demands and threats via family members. They also asserted that the ex-husband was involved in drug use and criminal activities, including a claimed murder of his brother, and had links to corrupt police. The decision under review was made by the delegate of the Minister.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) by establishing a well-founded fear of persecution, and alternatively, whether they met the criteria for complementary protection under section 36(2)(aa) by demonstrating a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal was required to consider the applicants' claims in light of available country information regarding India, particularly concerning the vulnerability of divorced women to gender-based violence and the limitations of police and judicial resources. The applicant's mental health and cognitive functioning were also a significant consideration.

The Tribunal considered the evidence regarding the applicant's mental health and cognitive functioning, noting that her treating psychologist's assessments had evolved over time. While initial reports suggested significant cognitive impairment, possibly compounded by an acquired brain injury, later reports indicated improvement and suggested that earlier difficulties were better explained by depressive anxiety rather than neurological impairment. The applicant stated at the hearing that the most recent report was accurate and was able to give evidence competently, with no apparent concerns about her cognitive functioning. The Tribunal also considered the possibility of entering Nepal without a passport, but concluded this would not remove the risk of being found by the ex-husband. The application for another country's visa was in its early stages and did not confer a right to enter and reside.

The Tribunal found that the applicants did not meet the criteria for a protection visa. However, it determined that the decision under review should be remitted for reconsideration of the complementary protection claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The most recent country information report on India by DFAT was published on 29 September 2023.CONSIDERATION OF CLAIMS AND EVIDENCEThe applicant’s mental health and cognitive status As a preliminary matter the Tribunal notes the applicant provided several reports to the Department[1] and Tribunal[2] from her treating psychologist, [Dr C], as well as other medical reports (including from her GP, [Dr D]). In his reports [Dr C] sets out the applicant’s psychological history, diagnosis and symptoms, and how her mental health issues impact her functioning. As noted by the delegate in their decision record, [Dr C]’s assessment about the severity of the applicant’s cognitive functioning issues appears to have changed over time in some respects. Specifically his initial assessment was of major depressive illness, anxiety and major loss of cognitive function, possibly compounded by an acquired brain injury (ABI).[3] In a later report [Dr C] states such disabilities will not improve with time.[4] However in subsequent reports [Dr C]’s assessment appears less serious (and less fixed). For example in a 2017 report [Dr C] states that the applicant will potentially be able to live a normal and symptom free life in the future if returned to a stable and supportive environment with appropriate psychological assistance.[5] (His latter reports do not mention an ABI.) Before the Tribunal the applicant provided a letter titled ‘further comment’ from [Dr C] dated 5 November 2023. In it he explains that at the earliest stage of his association with the applicant it was clear there were major difficulties in a range of cognitive domains. However [Dr C] clarifies that the applicant’s ‘initial impaired functionality was, with hindsight, better explained as concomitant with depressive anxiety, rather than indicative of neurological impairment’. [Dr C] provides as an annexe to this letter an earlier letter titled ‘Additional explanatory comment’ to a 7 November 2019 report, dated 11 May 2021 (which the applicant had provided to the Department). In it [Dr C] notes at the time he completed the 2019 report the applicant was significantly negatively impaired emotionally (due to fear of outcomes and continued threats to her and her family) and therefore was shown to have dramatic impairment on a range of cognitive tasks. [Dr C] goes on to note the applicant’s steady improvement following continued clinical support. At hearing the applicant said the most recent report from [Dr C] is accurate. She was unable to explain why his assessment of her cognitive impairment (in particular) had changed in some ways but emphasised at hearing and in her written statement to the Tribunal, that it is difficult for her to explain how much trauma, pain and physical abuse she has experienced after her marriage to [Mr B] in [Year]. The applicant made no mention of an ABI at hearing. She confirmed she works as [an occupation], at [Workplace] three to four days a week. It was clear to the Tribunal that she was competent to give evidence and there was no apparent concerns about her cognitive functioning.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent country information report on India by DFAT was published on 29 September 2023.CONSIDERATION OF CLAIMS AND EVIDENCEThe applicant’s mental health and cognitive status As a preliminary matter the Tribunal notes the applicant provided several reports to the Department[1] and Tribunal[2] from her treating psychologist, [Dr C], as well as other medical reports (including from her GP, [Dr D]). In his reports [Dr C] sets out the applicant’s psychological history, diagnosis and symptoms, and how her mental health issues impact her functioning. As noted by the delegate in their decision record, [Dr C]’s assessment about the severity of the applicant’s cognitive functioning issues appears to have changed over time in some respects. Specifically his initial assessment was of major depressive illness, anxiety and major loss of cognitive function, possibly compounded by an acquired brain injury (ABI).[3] In a later report [Dr C] states such disabilities will not improve with time.[4] However in subsequent reports [Dr C]’s assessment appears less serious (and less fixed). For example in a 2017 report [Dr C] states that the applicant will potentially be able to live a normal and symptom free life in the future if returned to a stable and supportive environment with appropriate psychological assistance.[5] (His latter reports do not mention an ABI.) Before the Tribunal the applicant provided a letter titled ‘further comment’ from [Dr C] dated 5 November 2023. In it he explains that at the earliest stage of his association with the applicant it was clear there were major difficulties in a range of cognitive domains. However [Dr C] clarifies that the applicant’s ‘initial impaired functionality was, with hindsight, better explained as concomitant with depressive anxiety, rather than indicative of neurological impairment’.