2303182 (Refugee) - [2023] AATA 2421

2303182 (Refugee) [2023] AATA 2421 (3 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Kenan Bircan (MARN: 1463685)
CASE NUMBER: 2303182

COUNTRY OF REFERENCE: Türkiye
MEMBER:Jane Marquard
DATE:3 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 May 2023 at 10:58am
CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurdish ethnicity – political opinion – religion – genuine and continuing relationship – member of the family unit – relationship ceased – decision under review affirmed
LEGISLATION
Domestic and Family Violence Protection Act 2012, Qld, s 105
Migration Act 1958, ss 5(1), 5AAA, 5F, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2, cl 866.611; rr 1.12, 1.15
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chand v MIMA [1997] FCA 530
Goraya v Minister for Immigration [2018] FCCA 2017
Harchandai v MIBP [2017] FCA 1395
Malhi v MIBP [2017] FCCA 119
MIBP v Angkawijaya [2016] FCAFC 5
Singh v MIEA [1996] FCA 1429
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 23 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is [an age]-year-old man from Istanbul, Türkiye.
He first arrived in Australia [in] February 2005 on a [Temporary] visa. He arrived in Australia with his wife and [children]. His wife and children have also applied for protection visas and their applications have been considered separately.
The applicant applied for the visa on 22 August 2017. He applied for protection as a member of the same family unit as his wife, who claimed that if she returned to Türkiye she would be persecuted for reasons of her Kurdish ethnicity, political views and religion.
The delegate of the Department of Home Affairs (the Department) refused to grant the visas for the applicant and his family members on 23 March 2018 on the basis that he was not satisfied that there was a real chance of serious harm or a real risk of significant harm to the applicant’s wife.
This is a review of that decision by the Administrative Appeals Tribunal.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, including…

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.

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Details

Case: [2023] AATA 2421
Decision Date: 3 May 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant a protection visa. The applicant, a man from Istanbul, Türkiye, arrived in Australia in February 2005 with his wife and children. He applied for a protection visa in August 2017, claiming to be a member of the same family unit as his wife, who alleged she would face persecution in Türkiye due to her Kurdish ethnicity, political views, and religion. The Administrative Appeals Tribunal reviewed the delegate's decision.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to determine if the applicant qualified as a refugee, or if he was a member of the same family unit as a person who held or would be granted a protection visa on refugee or complementary protection grounds. The Tribunal also considered the definition of "member of the same family unit" as provided by section 5(1) of the Act and regulation 1.12 of the Migration Regulations 1994 (Cth).

The Tribunal found that it had not received a response from the applicant to a letter inviting comment on information that would likely lead to the affirmation of the delegate's decision. Consequently, the Tribunal proceeded to determine the matter without further input from the applicant, pursuant to section 425(3) of the Act. Crucially, the Tribunal was not satisfied that the applicant was the spouse of his wife, and therefore not a member of the same family unit for the purposes of section 36(2)(b) or (c) of the Act.

As the Tribunal was not satisfied that the applicant met the criteria under section 36(2) of the Act, it affirmed the delegate's decision not to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicant is [an age]-year-old man from Istanbul, Türkiye. He first arrived in Australia [in] February 2005 on a [Temporary] visa. He arrived in Australia with his wife and [children]. His wife and children have also applied for protection visas and their applications have been considered separately. The applicant applied for the visa on 22 August 2017. He applied for protection as a member of the same family unit as his wife, who claimed that if she returned to Türkiye she would be persecuted for reasons of her Kurdish ethnicity, political views and religion. The delegate of the Department of Home Affairs (the Department) refused to grant the visas for the applicant and his family members on 23 March 2018 on the basis that he was not satisfied that there was a real chance of serious harm or a real risk of significant harm to the applicant’s wife. This is a review of that decision by the Administrative Appeals Tribunal. SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, including the Department, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611. Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4][2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision. An applicant must establish that they:a.are a refugee (the refugee criterion);[5] orb.qualify for complementary protection (the complementary protection criterion)[6] orc.are a member of the same family unit as a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7][5] Migration Act 1994 (Cth), s 36(2)(a).[6] Migration Act 1994 (Cth), s 36(2)(aa).[7] Migration Act 1994 (Cth), s 36(2)(b), (c).Refugee criterion

Evidence

Evidence Before The Court

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)).evidence The Tribunal has taken into consideration evidence provided to the Department and evidence provided to the Tribunal by the applicant’s family in their application for review. On 12 April 2023 the Tribunal wrote to the applicant to invite him to comment on or respond to information which the Tribunal considered would, subject to his comments or response, be the reason or a part of the reason, for affirming the decision under review. The applicant was invited to comment on or respond by 26 April 2023 or request an extension by that date. The applicant was advised that if the Tribunal did not receive his comments or response by that date, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information. He was advised that he would also lose his entitlement to appear before the Tribunal to give evidence and present arguments. The letter was sent to the last notified address provided by the applicant (his representative’s address). His family members had also provided another address for the applicant. A courtesy copy of the letter dated 12 April 2023 was also sent to this address. In the letter dated 12 April 2023, the Tribunal also noted that in previous correspondence the applicant had been notified that if he changed his address he should immediately notify the Tribunal. He was invited to provide new contact details. No response was received by the Tribunal as at the date of this decision. The Tribunal has therefore decided to determine the matter without taking further action to obtain his views, pursuant to s 425(3) of the Act. He has made no effort to contact the Tribunal or to advise of any new address. FINDINGSNationality For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside their country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

Decision

Reasons for decision

The Tribunal is also not satisfied that the applicant is the spouse of his wife, and therefore a member of the same family unit as his wife for the purposes of s 36(2)(b) or (c) of the Act. The Tribunal is not satisfied that the applicant meets s 36 (2) of the Act.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Jane MarquardMemberAttachment A - 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

Full text does not contain this section.