2217099 (Refugee)

Case [2023] AATA 1476

2217099 (Refugee) [2023] AATA 1476 (23 March 2023)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sam Issa

CASE NUMBER:  2217099

COUNTRY OF REFERENCE:                   Uzbekistan

MEMBER:Brendan Darcy

DATE:23 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 23 March 2023 at 1:45pm

CATCHWORDS

REFUGEE – protection visa – Uzbekistan – race – Armenian – religion – Christian – particular social group – relapsing drug users – evangelising – compulsory registration for drug rehabilitation treatment – fear of detention – extensive criminal history – forced labour – discriminatorily enforced laws – significant harm – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424A, 499, 501
Migration Regulations 1994, Schedule 2

CASES

Applicant S v MIMA (2004) 217 CLR 387
BBK15 v MIBP [2015] FCA 680
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMAC v SZRHU (2013) 215 FCR 35
MZZHY v MIBP [2013] FCCA 1246
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1254
SZVYD v MIBP [2019] FCA 648

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on [date] 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of the Republic of Uzbekistan (Uzbekistan), applied for the visa on [date]. The delegate refused to grant the visa on the basis that the delegate did not find the applicant’s claims to be credible, and that he did not have a genuine fear upon returning to Uzbekistan.

  3. The applicant appeared before the Tribunal on 17 January 2023 to give evidence and present arguments.

  4. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

  5. The evidence at each hearing was provided via an audio-visual platform between the Tribunal’s Melbourne facilities, and facilities at the [named detention centre].

  6. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

  7. 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…

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2217099 (Refugee) [2023] AATA 1476
Case
[2023] AATA 1476
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Uzbekistan. The applicant, who claims Armenian ethnicity and Orthodox Christian faith, sought protection on the grounds of potential persecution in Uzbekistan due to his race, religion, history of drug dependency, and criminal record. The applicant also raised concerns about being unable to access necessary medical treatment for his drug dependency and the potential for harsh prison conditions if detained. The decision under review was the refusal of a protection visa by a delegate of the Minister.

The core legal issues before the Tribunal were whether the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). This required the Tribunal to assess the applicant's claims of persecution based on his ethnicity, religion, and his status as a relapsing drug user facing compulsory registration for treatment, which he feared would lead to conviction and imprisonment. The Tribunal also had to consider the impact of his extensive criminal history and the potential for discriminatorily enforced laws in Uzbekistan.

The Tribunal concluded that the matter should be remitted for reconsideration. While the specific reasoning for this remittal is not detailed in the provided text, the Tribunal considered various claims made by the applicant, including his fear of persecution due to his Armenian ethnicity and Christian faith, the murder of his father which was linked to these factors, his drug dependency and the lack of adequate healthcare in Uzbekistan, and the potential for harsh prison conditions. The Tribunal also noted the applicant's extensive criminal history, which had previously led to the mandatory cancellation of his permanent visa, a decision that was affirmed by the Tribunal. The Tribunal's consideration of the applicant's claims was informed by Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines.

The Tribunal remitted the matter for reconsideration, indicating that the initial decision to refuse the protection visa was not determinative and required further assessment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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 outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant was born on [date] in the city of Samarkand in Uzbekistan. He claims to be from the Armenian ethnic group and an Antiochian Orthodox. The following identity documentary evidence was provided by the applicant to the Department: · Expired Uzbek passport (issue date: [in] 1995).[1][1] [File number] Department efile Doc ID [number]. The applciant first arrived in Australia on [date] 2000 as a holder of a [temporary] visa which ceased on [date] 2000. On [date], the applicant applied for a Class XA Subclass 866 protection visa which was refused on [date] 2000. A review of the decision to refuse the Protection visa was lodged with the then Refugee Review Tribunal on 15 January 2001 and withdrawn on 21 March 2002. [In] 2002, the applicant voluntarily departed Australia while holding a Bridging visa A (BVA). [In] 2003, the applicant returned to Australia after being granted a [temporary] visa. The applicant was later granted a [permanent] visa on [date]. An application for citizenship by conferral was lodged on 10 April 2007 and was refused on 14 August 2007. On 11 February 2016, the Department cancelled the applicant’s [permanent] visa under s 501 of the Act. The cancellation of the visa was revoked on 29 April 2016 under s 501CA(4) of the Act. On 17 November 2020, the visa was cancelled under s 501 of the Act and the applicant became unlawful. Application for revocation of the cancellation were refused by the Department. Review of the cancellation of the visa commenced on [date] with the [Tribunal]. On [date] 2022, the Tribunal affirmed the decision of the Department not to revoke the cancellation of the visa. On [date], the applicant lodged an application with the Department for a Class XA Subclass 866 protection visa which was refused on [date] 2022 and is the subject of this review.Claims for protection The applicant’s claims for protection are summarised as follows:· The applicant claimed to be born in the Uzbekistan’s largest city of Samarkand, and to be a citizen of Uzbekistan;· The applicant claimed to be of Armenian ethnicity and is identifiable as an ethnic Armenian by his name;· Born to an Orthodox Christian Armenian family, the applicant claimed to identify as a Christian, and that his religious practice involves evangelising; · If he returns to Uzbekistan, the applicant claims he will continue to practice his religion and he believes he will be persecuted by Muslims and the Uzbek authorities;· It was further claimed that the applicant’s father was murdered in [year]. Religion and ethnicity were ‘central motivating factor[s] in his murder.’ The person who murdered his father was convicted and imprisoned for 12 years. He has now been released and the applicant fears he will target him and seek retribution;· The applicant has a history of drug dependency which is currently being managed through prescription drugs. He will not be able to access the same level of health care in Uzbekistan. Without this treatment, the applicant further claimed that he is likely to relapse into illicit drug addiction;· Compulsory registration is required to access drug rehabilitation treatment in the public healthcare system in Uzbekistan. By registering to receive this treatment, the applicant claimed he will be vulnerable to being convicted as an illicit drug user, despite the fact he has not used illicit drugs for years. The applicant fears that if he is imprisoned, he would be subject to harsh prison conditions;· If he returns to Uzbekistan, it is claimed that the applicant will be harmed because he is of Armenian descent and he will be subjected to severe workplace discrimination because he is an Armenian Christian, but also because he has a history of drug dependency and has a criminal record;· He would not be able to relocate to another part of Uzbekistan because the drug laws are applicable nationwide and religious and ethnic persecution occurs throughout the country; and· If the applicant returns to Uzbekistan, he will be separated from his partner, [Partner A] (born [date], CID: [number]) and son, [Son A] (born [date]) who are both Australian citizens. His only remaining relatives in Uzbekistan are his elderly grandmother and [another relative].

Decision

Reasons for decision

A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on [date] 2022.Relevant information arising from the Tribunal’s s 501 decision record On [date] 2022, the applicant appeared before the [Tribunal] to review the Ministers decision not to revoke the mandatory cancellation of his [permanent] visa. Due to the combined effects of ss 501(6)(a) and 501(7)(c) of the Migration Act, the applicant did not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal applied the Direction to the specific circumstances of his case. The Tribunal saw no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations, rather than other considerations. The presiding Member considered the applicants criminal offending, finding that the totality of the offences and other conduct is such that the Tribunal was unpersuaded by the applicant’s latest claims about remorse, insight, and rehabilitation. Having weighed all relevant considerations individually and cumulatively, the Tribunal found there was no reason why the mandatory cancellation of the applicant’s visa should be revoked. The primary considerations of the protection of the Australian community and expectations of the Australian community; considerably outweighed the combined weight of the best interests of children, and the other countervailing considerations. Below is an extract from the Tribunal decision dated [2022] (a copy of the decision record was submitted to the Department);[Information deleted] According to the Tribunal’s [2022] decision not to revoke the cancellation of his [permanent] visa, the applicant has an extensive criminal history, which is summarised below;· [In] 2020, the applicant was sentenced to [term] imprisonment for Home Invasion (steal) – Person Present;· [In] 2020, the applicant was sentenced to [term] imprisonment for committing an indictable offence whilst on bail;· [In] 2020, the applicant was sentenced to [term] imprisonment for impersonating a police officer;· [In] 2020, the applicant was sentenced to [term] imprisonment for common law assault;· [In] 2020, the applicant was sentenced to [term] imprisonment for Burglary Theft;· [In] 2015, the applicant was convicted of contravening a suspended sentence order, Burglary, and ‘Equipped to Steal/Cheat’, and ‘Dealing in Property Suspected Proceed of Crime’. A Community Correction Order was imposed for [term]; · [In] 2014, the applicant was convicted of Providing a false name when requested, 4 charges of theft and 4 charges of burglary, [term] imprisonment;· [In] 2010, the applicant was convicted of driving whilst disqualified, serving [term] in jail;· [In] 2010, the applicant was convicted of 14 charges of Burglary and 13 charges of Theft, serving [term] imprisonment;· [In] 2008, the applicant served [term] imprisonment for Theft;· [In] 2008, the applicant served [term] imprisonment for Burglary, ‘Theft Without Authority/Excuse to Enter Private Place’, ‘Equipped to Steal/Cheat’; and· [In] 2007, the applicant was convicted of 2 charges of Theft From Shop (Shopsteal);Evidence provided to the Tribunal

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant was born on [date] in the city of Samarkand in Uzbekistan. He claims to be from the Armenian ethnic group and an Antiochian Orthodox. The following identity documentary evidence was provided by the applicant to the Department: · Expired Uzbek passport (issue date: [in] 1995).[1][1] [File number] Department efile Doc ID [number]. The applciant first arrived in Australia on [date] 2000 as a holder of a [temporary] visa which ceased on [date] 2000. On [date], the applicant applied for a Class XA Subclass 866 protection visa which was refused on [date] 2000. A review of the decision to refuse the Protection visa was lodged with the then Refugee Review Tribunal on 15 January 2001 and withdrawn on 21 March 2002. [In] 2002, the applicant voluntarily departed Australia while holding a Bridging visa A (BVA). [In] 2003, the applicant returned to Australia after being granted a [temporary] visa. The applicant was later granted a [permanent] visa on [date]. An application for citizenship by conferral was lodged on 10 April 2007 and was refused on 14 August 2007. On 11 February 2016, the Department cancelled the applicant’s [permanent] visa under s 501 of the Act. The cancellation of the visa was revoked on 29 April 2016 under s 501CA(4) of the Act. On 17 November 2020, the visa was cancelled under s 501 of the Act and the applicant became unlawful. Application for revocation of the cancellation were refused by the Department. Review of the cancellation of the visa commenced on [date] with the [Tribunal]. On [date] 2022, the Tribunal affirmed the decision of the Department not to revoke the cancellation of the visa. On [date], the applicant lodged an application with the Department for a Class XA Subclass 866 protection visa which was refused on [date] 2022 and is the subject of this review.Claims for protection The applicant’s claims for protection are summarised as follows:· The applicant claimed to be born in the Uzbekistan’s largest city of Samarkand, and to be a citizen of Uzbekistan;· The applicant claimed to be of Armenian ethnicity and is identifiable as an ethnic Armenian by his name;· Born to an Orthodox Christian Armenian family, the applicant claimed to identify as a Christian, and that his religious practice involves evangelising; · If he returns to Uzbekistan, the applicant claims he will continue to practice his religion and he believes he will be persecuted by Muslims and the Uzbek authorities;· It was further claimed that the applicant’s father was murdered in [year]. Religion and ethnicity were ‘central motivating factor[s] in his murder.’ The person who murdered his father was convicted and imprisoned for 12 years. He has now been released and the applicant fears he will target him and seek retribution;· The applicant has a history of drug dependency which is currently being managed through prescription drugs. He will not be able to access the same level of health care in Uzbekistan. Without this treatment, the applicant further claimed that he is likely to relapse into illicit drug addiction;· Compulsory registration is required to access drug rehabilitation treatment in the public healthcare system in Uzbekistan. By registering to receive this treatment, the applicant claimed he will be vulnerable to being convicted as an illicit drug user, despite the fact he has not used illicit drugs for years. The applicant fears that if he is imprisoned, he would be subject to harsh prison conditions;· If he returns to Uzbekistan, it is claimed that the applicant will be harmed because he is of Armenian descent and he will be subjected to severe workplace discrimination because he is an Armenian Christian, but also because he has a history of drug dependency and has a criminal record;· He would not be able to relocate to another part of Uzbekistan because the drug laws are applicable nationwide and religious and ethnic persecution occurs throughout the country; and· If the applicant returns to Uzbekistan, he will be separated from his partner, [Partner A] (born [date], CID: [number]) and son, [Son A] (born [date]) who are both Australian citizens. His only remaining relatives in Uzbekistan are his elderly grandmother and [another relative].