2304579 (Refugee)

[2024] AATA 2319

2304579 (Refugee) [2024] AATA 2319 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2304579

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Bridget Cullen

DATE:27 June 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 27 June 2024 at 12.21pm

CATCHWORDS

REFUGEE – Protection Visa – Iraq – federal court remittal – applicant is not in Australia – outside of migration zone – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424, 425

Migration Regulations 1994, 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

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 28 April 2020 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 Iraq, applied for the visa on 21 September 2017.

2. The Applicant first sought review in the Tribunal on 25 May 2020. On 21 September 2022, the Tribunal (differently comprised) affirmed the decision to refuse to grant the Applicant a protection visa. The Applicant then appealed the 22 September 2022 decision, and on [date] March 2023, the Federal Circuit and Family Court of Australia (Div 2) remitted the matter back to the Tribunal, by consent. The reason for remittal was that the FCFCOA found the Tribunal’s decision to be affected by jurisdictional error. Specifically, the Tribunal (differently comprised) had failed to invite the Applicant to appear before it to give evidence and present arguments related to the issues arising in relation to the decision under review pursuant to the obligation in s 425(1) of the Act.

3. This Tribunal invited the Applicant to attend a hearing, which was held on 23 May 2024, via Microsoft Teams video, given that the Applicant is offshore. The Applicant was assisted by a NAATI Accredited interpreter proficient in the Arabic and English languages. The Applicant attended the hearing.

4. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

6. So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the Applicant is in Australia.

7. Movement records indicate that the Applicant is not in Australia. It appears that he left Australia on [date] May 2021. The Tribunal invited the Applicant under s 424A to provide comment on or response to adverse information that the Applicant is offshore, as that information is relevant to the criteria in s 36(2)(a) and (aa) that the Applicant is a non-citizen in Australia who is owed protection.

8. The Applicant’s representative has submitted that the Tribunal ought to consider the Applicant’s protection claims, because of:

   ·The severity of the Applicant’s situation;

   ·The Applicant is offshore through no fault of his own;

   ·The issues considered by the Delegate encompassed considerations relating to whether the Applicant faced a real chance of persecution or significant harm were he to return to Iraq; and

   ·The Applicant has been prejudiced by the delay before the Tribunal in reviewing the decision.      

9. At the hearing, the Tribunal discussed with the Applicant the criteria in both ss 36(2)(a) and (aa), that am Applicant for protection ‘is a non-citizen in Australia’. The Applicant concedes that he does not meet this criterion as he is located in Iraq.

10. As the Tribunal is aware of information that the Applicant is not in Australia, the Tribunal finds that the Applicant does not meet s 36(2)(a) and (aa). There is therefore no requirement for the Tribunal to consider whether the Applicant satisfies the other requirements of s 36(2)(a) or (aa), notwithstanding the representative’s submissions on why the Tribunal should do so. The circumstances surrounding why the Applicant is offshore are not relevant to the question of fact as to whether or not he is in Australia.

11. The Tribunal’s objectives are to provide a mechanism of review that is not only fair, just, economical, informal and quick, but also proportionate to the importance and complexity of the matter (s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)). The Tribunal does not have the ability to overlook the fact that the Applicant is offshore, regardless of how compelling those reasons are.

12. At the hearing, the Tribunal discussed with the Applicant the role of Ministerial Intervention. Following the hearing, the Tribunal wrote to the Applicant and provided him with a post-hearing opportunity to make submissions in relation to the issues about:

    (1) Whether the Tribunal can refer this matter for Ministerial Intervention; and

    (2) The basis on which you say the matter should be referred.

    For your assistance, the Tribunal has attached the current Minister’s Guidelines on
    Ministerial Powers. You can also view the current Minister’s Guidelines on Ministerial
    Powers here: Ministerial intervention (homeaffairs.gov.au)

    The Tribunal observes that under the heading “Cases that should not be brought to my attention” at Part 7 “Inappropriate to consider”, cases where the “person has left
    Australia” are included.

    The Tribunal may interpret this to mean that, as you are currently in Iraq, that you have left Australia, and therefore your case does not meet the criteria for Ministerial Intervention.

13. The Applicant sought an extension of time to provide post-hearing submissions, until 28 June 2024. The Tribunal agreed to provide an extension of time until 21 June 2024, for the reason that the issues the Applicant was invited to comment on are not, in the Tribunal’s view, legally complex. The Tribunal recognises that in this matter, as with all protection matters, there is significant human complexity, but the Tribunal’s role is confined by the legislation that confers it with jurisdiction. In contrast, the Minister is able to consider the full range of legal, human, social, and policy issues applicable in making any decision they think appropriate. .

14. The Applicant’s representative has provided submissions to the Tribunal on the Applicant’s behalf. The Applicant asserts that the Tribunal can refer this matter for Ministerial Intervention.  The submissions do not, however, squarely address the issue flagged by the Tribunal – that being that the Minister’s Guidelines under the heading “Cases that should not be brought to my attention” at Part 7 “Inappropriate to consider”, includes cases where the “person has left Australia”. Plainly, that is the case here. Therefore, the Tribunal declines to refer this matter to the Minister.

    Conclusion

15. The Tribunal is satisfied from the circumstances set out above that the Applicant is not in Australia. Therefore, the Applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

16. Having reached this conclusion, it is not necessary to consider the Applicant's substantive case for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the Applicant a protection visa.

    Bridget Cullen
    Senior Member