2300587 (Refugee) - [2023] AATA 1557

2300587 (Refugee) [2023] AATA 1557 (7 March 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2300587

COUNTRY OF REFERENCE: Morocco

MEMBER: Joseph Lindsay

DATE: 7 March 2023

PLACE OF DECISION: Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 7 March 2023 at 11:00am

CATCHWORDS
REFUGEE – protection visa – Morocco – forced marriage – locked in a room for over a year – criminal activity in Australia – credibility concerns – immigration history – unlawful status – delay in seeking protection – agreed to voluntary removal – claims vague and lacking in detail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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 16 January 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicant, who is a citizen of Morocco, applied for the visa on 9 December 2022. The applicant participated in a video hearing with the Tribunal on 6 March 2023 to give evidence and present arguments. The applicant made clear that he understood English and that he did not require an interpreter.

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 country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to…

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 2300587 (Refugee)

Details

AGLC: 2300587 (Refugee) [2023] AATA 1557
Case: [2023] AATA 1557
Decision Date: 7 March 2023

CaseChat Overview and Summary

The applicant, a citizen of Morocco, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to have been subjected to forced marriage and unlawful detention in Morocco for over a year, and also alleged involvement in criminal activity in Australia. The Administrative Appeals Tribunal affirmed the Minister's decision, leading to the present application for review in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court concerned the applicant's credibility and the assessment of their claims for protection. Specifically, the Court was required to determine whether the Tribunal had erred in its assessment of the applicant's evidence, including the vagueness and lack of detail in their claims, their immigration history, and their prior agreement to voluntary removal from Australia. The Court also considered the impact of the delay in seeking protection.

Justice Lindsay affirmed the Tribunal's decision, finding that the Tribunal had adequately considered all relevant evidence and had not made any errors of law. The Court noted that the applicant's claims were vague and lacked specific details, and that there were significant credibility concerns arising from their immigration history and their prior agreement to voluntary removal. The Tribunal's findings that the applicant had not established a well-founded fear of persecution were therefore upheld.

Orders