2203985 (Refugee) - [2022] AATA 3090

2203985 (Refugee) [2022] AATA 3090 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sam Issa
CASE NUMBER:  2203985
COUNTRY OF REFERENCE:                   New Zealand
DEPUTY PRESIDENT:  Antoinette Younes
DATE:2 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2022 at 3:55pm
CATCHWORDS
REFUGEE – protection Visa– New Zealand – religion – Christian –applicant has a substantial criminal history – involved in organisations in the underworld – delay in lodging the application for a protection visa – applicant has never been involved in any activities relating to the Mongrel Mob – fabricated claims – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration v Viane [2021] HCA 41
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 17 March 2022 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 New Zealand, applied for the visa on 10 February 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined in s 5H of the Act.
The applicant appeared before the Tribunal on 18 May 2022, 13 July 2022 and 26 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother who is incarcerated in New Zealand.
The applicant was represented in relation to the review by Mr Sam Issa.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside 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 2203985 (Refugee)

Details

AGLC: 2203985 (Refugee) [2022] AATA 3090
Case: [2022] AATA 3090
Decision Date: 2 August 2022

CaseChat Overview and Summary

The applicant, a New Zealand national, sought review of the refusal of a permanent Protection (XA 866) visa. The applicant had a substantial criminal history, leading to the cancellation of his Subclass 444 Special Category (Temporary) visa. He claimed he feared persecution in New Zealand due to past involvement with criminal organisations, specifically the Mongrel Mob, and that his life and his family's lives were in danger. He also asserted claims based on his Christian faith and membership in a particular social group.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958. This required determining if Australia had protection obligations towards him, specifically whether he was a refugee with a well-founded fear of persecution, or if there were substantial grounds for believing he would suffer significant harm if removed to New Zealand. The Tribunal was also required to consider the applicant's claims of persecution based on religion and membership of a particular social group, and whether effective protection measures were available in New Zealand.

The Tribunal found that the applicant's claims lacked credibility, particularly concerning his alleged involvement with the Mongrel Mob and the threats he claimed to have received. It noted that the applicant had a history of criminal activity and that his visa had been cancelled under section 501 of the Act. The Tribunal considered the applicant's assertion of a well-founded fear of persecution due to his Christian faith and his decision to disassociate from criminal elements, but concluded that these claims were not substantiated to the required legal standard. Furthermore, the Tribunal considered the possibility of relocation within New Zealand and the availability of state protection, finding that the applicant had not demonstrated that such measures would be ineffective.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. It concluded that the applicant did not satisfy the criteria under section 36(2) of the Migration Act 1958, as he had not established a well-founded fear of persecution or a real risk of significant harm upon return to New Zealand. The Tribunal also noted that the applicant did not satisfy the criteria under section 36(2)(b) or (c) by being a member of the same family unit as a person who held a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as defined in ss 36(2)(a) and 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The applicant provided the Tribunal with a copy of the delegate’s decision record, which indicates that:(a)The applicant visited Australia on two occasions, in 1988 and 1994. From April 1995 until December 2008, the applicant was in Australia on six occasions as the holder of a Special Category (Temporary) (TY – 444) visa. (b)On 22 May 2013, the Department commenced cancellation of the applicant’s TY-444 visa under s 501CA(4) of the Act, and on 3 February 2017, the visa was cancelled under s 501 of the Act.(c)The applicant lodged an application for review with the AAT seeking revocation of the s 501 cancellation decision. The AAT affirmed the decision to cancel. Judicial review upheld the Tribunal’s decision.(d)On 20 February 2021, the applicant was released from criminal detention but was detained in immigration detention pursuant to s 189 of the Act.The applicant’s protection claimsWritten statement On 10 February 2022, the applicant lodged the application for the permanent Protection (XA 866) visa, which was refused on 17 March 2022. The refusal is the subject of this review. The applicant provided a written statement, in which he made the following claims:·He is [age] years old and he came to Australia to live in 2007. During his time in Australia, he has studied and in 2007, he commenced an [apprenticeship], which he completed in 2012. He won an award for his apprenticeship.·He is very involved with his family and they are in his life. His aunt [took] him in and raised him in Australia. He plays sports and is very involved with [his] community in Brisbane, including fundraising and organising social events.·He has lived a “colourful life” and has had a “chequered past”. He has made mistakes and his past actions have caught up with him. He has been involved in activities and organisations in the underworld. He has made enemies with the Mongrel Mob. His life and that of his family are in danger.·The Mongrel Mob is sizeable and has personnel and resources that could endanger him in New Zealand. He was receiving threats whilst he was in prison in 2020. [Ms A] at [a] Correctional Centre intercepted correspondence addressed to him. The correspondence indicated that on arrival in New Zealand, he would be “pursued and taken care of”. On receipt of the threatening letter, [Ms A] notified the New Zealand authorities of the imminent threat to his life. ·The New Zealand authorities have incarcerated his brother in Wellington. His brother was hospitalised for two and a half weeks in relation to an attack in prison for being the applicant’s sibling. As a result, the New Zealand authorities released his brother into the care and custody of his parents. His parents run many churches throughout New Zealand and the Pacific, as part of the global Christian network. His deportation to New Zealand would have an adverse impact on his parents’ activities.Statutory Declaration

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 criteria in s 36(2).decision The Tribunal affirms the decision not to grant the applicant a protection visa.Antoinette YounesDeputy PresidentAttachment - 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

The applicant provided a written statement, in which he made the following claims:·He is [age] years old and he came to Australia to live in 2007. During his time in Australia, he has studied and in 2007, he commenced an [apprenticeship], which he completed in 2012. He won an award for his apprenticeship.·He is very involved with his family and they are in his life. His aunt [took] him in and raised him in Australia. He plays sports and is very involved with [his] community in Brisbane, including fundraising and organising social events.·He has lived a “colourful life” and has had a “chequered past”. He has made mistakes and his past actions have caught up with him. He has been involved in activities and organisations in the underworld. He has made enemies with the Mongrel Mob. His life and that of his family are in danger.·The Mongrel Mob is sizeable and has personnel and resources that could endanger him in New Zealand. He was receiving threats whilst he was in prison in 2020. [Ms A] at [a] Correctional Centre intercepted correspondence addressed to him. The correspondence indicated that on arrival in New Zealand, he would be “pursued and taken care of”. On receipt of the threatening letter, [Ms A] notified the New Zealand authorities of the imminent threat to his life. ·The New Zealand authorities have incarcerated his brother in Wellington. His brother was hospitalised for two and a half weeks in relation to an attack in prison for being the applicant’s sibling. As a result, the New Zealand authorities released his brother into the care and custody of his parents. His parents run many churches throughout New Zealand and the Pacific, as part of the global Christian network. His deportation to New Zealand would have an adverse impact on his parents’ activities.Statutory Declaration In support of the application for a protection visa, the applicant provided a Statutory Declaration, in which he stated:·He is claiming persecution on the grounds of religion and membership a of a particular social group. He relies on the complementary protection provisions in relation to the assessment of his claims. ·He was born on [date], in Wellington, New Zealand. He is a New Zealand national and he does not have any other nationality or the right to enter or reside in any other country. He initially arrived in Australia in 2007 and he is currently in a relationship with an Australian citizen. He has a substantial criminal history and his Subclass 444 Special Category (Temporary) visa has been cancelled pursuant to s 501 of the Act. Both of his parents and a brother continue to reside in New Zealand. He has several close relatives in Australia.·In light of his imminent deportation, he has no other choice but to apply for a protection visa as there are prevailing threats to his safety. Since his incarceration, he has received numerous threats from criminal elements in New Zealand to cause him serious physical harm in case of his return to New Zealand.·His past association with the criminal elements as well as his decision to dissociate from all forms of criminality have made him a distinct target for revenge. His decision to dissociate from the criminal elements is based on his Christian convictions and determination to amend his past behaviour. The disassociation and determination to amend his past behaviour have “infuriated” those criminal elements who now seek to avenge what they perceive as his ultimate betrayal.·His family is deeply religious and as part of the Global Christian Congress, ran many Christian churches in New Zealand and the Pacific region. He has in the past shamed and dishonoured his family as well as turning his back on God. He has learned from the past and is determined to turn his life around and live a virtuous Christian life.·The criminal elements are awaiting to avenge his perceived disloyalty immediately after his arrival in New Zealand. Since his imprisonment in 2020, he has received threats to his life and the lives of his family. The Australian prison authorities have intercepted a communication which details the imminent threats to his safety on his return to New Zealand. Those threats have persisted.·His brother, who is currently serving a prison sentence in Wellington, was subjected to an act of reprisal and sustained serious physical injuries. In recognition of the danger to his brother’s personal safety in prison, he was released by the New Zealand authorities and placed in the care of his parents.·He recognises that New Zealand has similar law enforcement and laws to Australia. He, however, fears that the New Zealand authorities would not be able to protect him from the criminal gangs. The incident involving his brother’s assault in prison demonstrates the extent of the criminal gangs’ capacity to harm their victims.·It is well established that New Zealand is subject to widespread organised crime and that those criminal elements are potent in their actions of reprisal. Relocation to another part of New Zealand will not be an effective deterrent as those criminal elements have vast networks which operate throughout New Zealand. His parents continue to warn him against returning to New Zealand as the threat to his personal safety is real and likely to be carried out shortly after his arrival in New Zealand. ·The Australian authorities are conscious of the threats that have been made against him and his personal safety would be severely compromised in New Zealand.