2304131 (Refugee) - [2023] AATA 3429

2304131 (Refugee) [2023] AATA 3429 (26 July 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2304131

COUNTRY OF REFERENCE: India

MEMBER: Jason Pennell

DATE: 26 July 2023

PLACE OF DECISION: Melbourne

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

Statement made on 26 July 2023 at 4.55pm

CATCHWORDS

REFUGEE – protection visa – India – fear of harm from family and ex-wife’s family and ex-partner – non-acceptance of marriage and Australian-born child – threats via wife’s phone and social media – drug use, criminal charges, student visa cancelled and immigration detention – vague claims and no supporting evidence provided – parents ambitious but not abusive, and concerned about lifestyle and relationship – wife same caste and religion as applicant – no current contact with her or ex-partner – best interests of child – wife’s separate protection application with child as secondary applicant – not referred for ministerial consideration but applicant may apply personally – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chan v MIEA (1989) 169 CLR 379

Davis v MICMSMA; DCM20 v Secretary, DHA [2023] HCA 10
MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Savvin v MIMA [1999] FCA 1265

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 20 March 2023 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 India, applied for the visa on 9 February 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations, as provided for by s 36(2)(a) or s 36(2)(aa), and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, as provided for in s 36(2)(b) or s 36(2)(c) of the Act.
The applicant appeared before the Tribunal on 9 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

CRITERIA FOR A PROTECTION VISA

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 2304131 (Refugee)

Details

AGLC: 2304131 (Refugee) [2023] AATA 3429
Case: [2023] AATA 3429
Decision Date: 26 July 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a man from India. The applicant claimed he feared harm from his family and his ex-wife's family due to their disapproval of his marriage and their Australian-born child. He also alleged threats via social media and his ex-wife's phone. The applicant's student visa had been cancelled, and he was in immigration detention. The Administrative Appeals Tribunal (AAT) reviewed the decision to refuse the protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically concerning his claims of fear of harm. A secondary, but significant, issue was the potential impact of the applicant's departure from Australia on his infant son, who was in foster care in Australia, and whether this warranted referral for ministerial intervention under section 417 of the Migration Act 1958 (Cth).

The Tribunal found that the applicant's claims of fear of harm were vague and lacked supporting evidence. While his parents were ambitious and concerned about his lifestyle, they were not abusive. There was no current contact with his ex-wife or her ex-partner. The Tribunal acknowledged that the applicant's departure would impact his son, but this did not directly bear on Australia's protection obligations to the applicant. However, the Tribunal considered the best interests of the child in the context of ministerial intervention. It noted that the applicant's son was not an Australian citizen or permanent resident and held a bridging visa. The Tribunal concluded that while the separation of a parent and child is undesirable, the circumstances did not meet the threshold of "unique or exceptional circumstances" required for a mandatory referral for ministerial consideration. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal acknowledges that if the applicant’s application for a protection visa is unsuccessful, he will likely need to depart Australia. Naturally, the applicant’s departure will impact his infant son, [Master A], who is currently in foster care in Australia. The risk of potential harm faced by [Master A] if the applicant must return to India does not, in this case, bear on Australia’s protection obligations to the applicant. However, it is relevant to the Minister’s power to intervene to substitute a decision of the Tribunal with one that is more favourable to the applicant, pursuant to s 417 of the Act. That section reads, relevantly:Section 417 Minister may substitute more favourable decision(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The Minister’s Guidelines on Ministerial Powers (the Minister’s Guidelines) set out the guidelines for the exercise of this intervention power. These guidelines state that:44A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines. The guidelines set out instructions for Departmental officers regarding the cases that should be brought to the Minister’s attention. The Tribunal notes that the recent High Court decision of Davis v MICMSMA45 held that all requests for Ministerial intervention must be considered by the Minister personally, and that, contrary to the terms of the policy, the Department may not finalise cases without referring them to the Minister. Notwithstanding, the Tribunal may still consider whether an applicant’s circumstances meet those set out within the policy and refer their case for Ministerial consideration. Importantly, whether or not the Tribunal does so, an applicant is still entitled to seek Ministerial intervention themselves. The Tribunal notes that [Master A] is not an Australian citizen or permanent resident. He holds a Bridging E (Subclass 050) visa in association with his mother’s pending protection visa application. With this knowledge in mind, the Tribunal notes that for any recommendation for Ministerial intervention there must be ‘unique or exceptional circumstances’, which can include circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular case. In this case, the application of relevant legislation results in a parent being separated from his child while that child legally remains in Australia pending the outcome of his other parent’s visa application. The Tribunal accepts, as a general principle, that it is undesirable for children to be separated from their parents. The Minister’s Guidelines state that the Minister seeks information regarding:circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.

Ratio Decidendi

Legal Principle Established

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