2306857 (Refugee) - [2023] AATA 4100

2306857 (Refugee) [2023] AATA 4100 (1 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sanmati Verma
CASE NUMBER:  2306857
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Jason Pennell
DATE:1 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant is a member of the same family unit as [Ms A] (AAT file No 1613496 & 2113232) pursuant to s.36(2)(b)(i) of the Migration Act.
Statement made on 1 September 2023 at 10.05am
CATCHWORDS
REFUGEE – Protection Visa –Pakistan – GOD had affirmed the delegates decision in relation to applicant – Tribunal no longer has jurisdiction to determine of the applicant is a refugee pursuant to s.36(2)(a) of the Act – applicant suffers for PTSD and depression – apprehended bias – recusal request was refused – applicant as a Member of the same family unit –a member of the same family unit as persons mentioned in s 36(2)(a) of the Act, and who hold a protection visa of the same class as that applied for by the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 45, 48, 65, 66, 412, 499

Migration Regulations 1994, rr 1.05, 1.12, 2.08, Schedule 2

CASES

BMY18 v Minister for Homes Affairs [2019] FCAFC 189
Ebner v the Official Trustee in Bankruptcy [2000] HCA 63
Isbester v Knox City Council (2015) 89 ALJR 609

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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicant together with his wife, [Ms A] (‘the applicant’s wife’) and their three children (‘the applicants’’) initially applied for Protection (Class XA) visas on 5 February 2013. However, by operation of s45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the applications were taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas.
3.On 18 August 2016 the delegate of the Minister for Immigration and Border Protection refused the applicants’ application for protection (‘the delegates decision”). On 24 August 2016 the applicants made an application to the Tribunal to review the delegates decision, to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

On 25 October 2019 the General & Other Division of the Administrative Appeal Tribunal (the GOD) affirmed the delegates decision (‘the GOD affirm decision’) to refuse…

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 2306857 (Refugee)

Details

AGLC: 2306857 (Refugee) [2023] AATA 4100
Case: [2023] AATA 4100
Decision Date: 1 September 2023

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision by the Refugee Tribunal. The Tribunal had affirmed a delegate's decision regarding the applicant's protection visa application. The applicant alleged apprehended bias and requested the Tribunal member recuse themselves, which was refused. The applicant also claimed to be a member of the same family unit as persons who hold a protection visa of the same class as that applied for by the applicant, as contemplated by section 36(2)(a) of the *Migration Act 1958* (Cth).

The primary legal issue before the court was whether the Tribunal had jurisdiction to determine if the applicant was a refugee under section 36(2)(a) of the Act, given that the delegate's decision had already been affirmed. A further issue concerned the applicant's claim to be a member of the same family unit as persons holding protection visas of the same class. The court also considered the refusal of the recusal request.

The court reasoned that the Tribunal no longer had jurisdiction to determine the applicant's refugee status under section 36(2)(a) of the Act because the delegate's decision had been affirmed. However, the court found that the applicant did satisfy the criteria of being a member of the same family unit as persons mentioned in section 36(2)(a) who held a protection visa of the same class. The court did not make findings on the apprehended bias claim.

The court set aside the Tribunal's decision and remitted the matter to the Tribunal for reconsideration of the applicant's eligibility for a protection visa based on the family unit provisions.

Orders