2308875 (Refugee) - [2024] AATA 3907

2308875 (Refugee) [2024] AATA 3907 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Bilal Amani
CASE NUMBER:  2308875
COUNTRY OF REFERENCE:                   Chad
MEMBER:Adrienne Anderson
DATE:28 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 June 2024 at 4:05pm
CATCHWORDS
REFUGEE – protection visa – Chad – membership of particular social group – divorced woman with child – fear of harm from brother and ex-husband – forced marriage to Chadian man living in another country – physical, sexual and psychological violence by husband, and harassment and accusations by friend – husband took children back to Chad, where one was killed in traffic accident – husband’s official employment and connections – mental health – no counselling or psychological support – possibly no male relative in home country – country information – insufficient state protection and risk in all areas of country – treaty right to enter and reside in another country limited or not available – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (2), (4)(c), 5LA, 36(2)(a), (3), 65, 425(2)(a)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIMAC v SZRHU (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391
SZQRM v MIAC [2013] FCCA 772; SZQRM v MIBP [2013] FCA 1297
WAGH v MIMIA (2003) 131 FCR 269
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 9 June 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 Chad, applied for the visa on 14 December 2017. On 9 June 2023 the delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of a protection visa. The applicant filed an application with the Tribunal for a review of the delegate’s decision on 20 June 2023. The applicant was represented in relation to the review.
The applicant was initially invited to a review hearing at 1.30pm on 28 May 2024. On the morning of 28 May 2024, the Tribunal received a request to postpone the hearing on the basis that the applicant needed additional time to gather documents and witness statements. The Tribunal declined the request on the basis that the Tribunal had sent the invitation to the hearing six weeks’…

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 2308875 (Refugee)

Details

AGLC: 2308875 (Refugee) [2024] AATA 3907
Case: [2024] AATA 3907
Decision Date: 28 June 2024

CaseChat Overview and Summary

The applicant, a woman from Chad, sought a protection visa, claiming a well-founded fear of persecution or a real risk of significant harm upon return to Chad. Her claims stemmed from alleged violence and threats by her ex-husband and brother, including a forced marriage and the subsequent death of her son in Chad. The case was before the Tribunal for reconsideration.

The central legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution under section 36(2)(a) of the Migration Act 1958, or alternatively, whether there was a real risk of significant harm if she were removed from Australia to Chad, pursuant to section 36(2)(aa) of the Act. The Tribunal was required to assess the applicant's claims in light of country information and the relevant guidelines, considering the definition of "significant harm" and the availability of effective protection measures.

The Tribunal found that the applicant was a citizen of Chad and that her claims warranted reconsideration. While the detailed reasoning for the ultimate decision is not fully elaborated in the provided text, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal was satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant has a well-founded fear of persecution on return to Chad or whether there is a real risk of significant harm if the applicant is removed from Australia to Chad. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Applicant’s background and claims for protection The applicant is a [Age]-year-old woman from Bourkou-Ennedi-Tibesti (BET), in Bourkou, Chad. She is of [named Ethnicity] and Muslim faith. The applicant’s father is deceased. Her mother resides in N’Djamena, Chad. She has two children, one of whom is deceased. The applicant’s [son] was born in [Year] and was killed in a traffic accident in Chad in March 2018. The applicant’s [daughter] was born in [Country 1] in [Year] and currently resides in Chad. It appears from stamped pages in the applicant’s passport that she first travelled to [Country 1] in April 2013. She returned to Chad where she resided between February 2014 and March 2015. In March 2015 she returned to [Country 1], where she resided until October 2017. On 17 November 2015 the applicant was granted a [Specified] visa. She last arrived in Australia on the [visa] with her son [in] October 2017. [In] November 2017 the applicant’s son departed Australia with his father. On 14 December 2017 the applicant lodged the application for a protection visa. In essence, the applicant claims to fear harm at the hands of her eldest brother and her (ex)husband. Her claims are that when she was in her final year of high school, her eldest brother, who was acting as her guardian following the death of her father, forced her into an arranged marriage with a Chadian man living in [Country 1] named [Mr A]. The applicant experienced serious physical, sexual and psychological violence from her husband [Mr A] in [Country 1] and Australia. When [Mr A] travelled to live in Australia, the applicant was sexually harassed by a friend of [Mr A] called [Mr B], who the applicant was living with in [Country 1]. The applicant refused [Mr B]’s advances and stayed at friends’ houses to avoid him. [Mr B] informed [Mr A] that the applicant was staying out at night, which caused [Mr A] to accuse the applicant of being a prostitute. He informed her family and the applicant’s eldest brother subsequently threatened to kill the applicant. After the applicant came to Australia to try to resolve the situation with her husband, the abuse continued, culminating in [Mr A] forcibly taking the applicant’s son from her and leaving Australia. He returned to [Country 1] to collect the applicant’s daughter and took both children back to Chad, where the applicant’s son was later killed in an accident. The applicant’s daughter is residing with [Mr A]’s parents and the applicant has no contact with her. The applicant lodged the application for the protection visa on 14 December 2017. In support of a request for prioritisation of her application made on 26 August 2020, the applicant’s former representative provided a confidential psychological report by [Ms C], counsellor, of [Organisation 2], dated 16 June 2020 and a letter from [a] GP, of [Organisation 3], dated 28 April 2020. Both described the applicant’s distress and grief at the loss of her son. The report by [Ms C] described the applicant’s symptoms including sleeping difficulties and low appetite.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs.CLAIMS AND EVIDENCE The applicant has consistently stated that she is a citizen of Chad, provided a copy of her Chadian passport, and has been assessed as a Chadian citizen by the Department. The Tribunal finds that the applicant is a citizen of Chad and has assessed her claims against Chad as the country of nationality and the receiving country. The issue in this case is whether the applicant has a well-founded fear of persecution on return to Chad or whether there is a real risk of significant harm if the applicant is removed from Australia to Chad. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Applicant’s background and claims for protection The applicant is a [Age]-year-old woman from Bourkou-Ennedi-Tibesti (BET), in Bourkou, Chad. She is of [named Ethnicity] and Muslim faith. The applicant’s father is deceased. Her mother resides in N’Djamena, Chad. She has two children, one of whom is deceased. The applicant’s [son] was born in [Year] and was killed in a traffic accident in Chad in March 2018. The applicant’s [daughter] was born in [Country 1] in [Year] and currently resides in Chad. It appears from stamped pages in the applicant’s passport that she first travelled to [Country 1] in April 2013. She returned to Chad where she resided between February 2014 and March 2015. In March 2015 she returned to [Country 1], where she resided until October 2017. On 17 November 2015 the applicant was granted a [Specified] visa. She last arrived in Australia on the [visa] with her son [in] October 2017. [In] November 2017 the applicant’s son departed Australia with his father. On 14 December 2017 the applicant lodged the application for a protection visa. In essence, the applicant claims to fear harm at the hands of her eldest brother and her (ex)husband. Her claims are that when she was in her final year of high school, her eldest brother, who was acting as her guardian following the death of her father, forced her into an arranged marriage with a Chadian man living in [Country 1] named [Mr A]. The applicant experienced serious physical, sexual and psychological violence from her husband [Mr A] in [Country 1] and Australia. When [Mr A] travelled to live in Australia, the applicant was sexually harassed by a friend of [Mr A] called [Mr B], who the applicant was living with in [Country 1]. The applicant refused [Mr B]’s advances and stayed at friends’ houses to avoid him. [Mr B] informed [Mr A] that the applicant was staying out at night, which caused [Mr A] to accuse the applicant of being a prostitute. He informed her family and the applicant’s eldest brother subsequently threatened to kill the applicant. After the applicant came to Australia to try to resolve the situation with her husband, the abuse continued, culminating in [Mr A] forcibly taking the applicant’s son from her and leaving Australia. He returned to [Country 1] to collect the applicant’s daughter and took both children back to Chad, where the applicant’s son was later killed in an accident. The applicant’s daughter is residing with [Mr A]’s parents and the applicant has no contact with her.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Adrienne AndersonMemberATTACHMENT - 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

If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs.CLAIMS AND EVIDENCE The applicant has consistently stated that she is a citizen of Chad, provided a copy of her Chadian passport, and has been assessed as a Chadian citizen by the Department. The Tribunal finds that the applicant is a citizen of Chad and has assessed her claims against Chad as the country of nationality and the receiving country. The issue in this case is whether the applicant has a well-founded fear of persecution on return to Chad or whether there is a real risk of significant harm if the applicant is removed from Australia to Chad. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Applicant’s background and claims for protection The applicant is a [Age]-year-old woman from Bourkou-Ennedi-Tibesti (BET), in Bourkou, Chad. She is of [named Ethnicity] and Muslim faith. The applicant’s father is deceased. Her mother resides in N’Djamena, Chad. She has two children, one of whom is deceased. The applicant’s [son] was born in [Year] and was killed in a traffic accident in Chad in March 2018. The applicant’s [daughter] was born in [Country 1] in [Year] and currently resides in Chad. It appears from stamped pages in the applicant’s passport that she first travelled to [Country 1] in April 2013. She returned to Chad where she resided between February 2014 and March 2015. In March 2015 she returned to [Country 1], where she resided until October 2017. On 17 November 2015 the applicant was granted a [Specified] visa. She last arrived in Australia on the [visa] with her son [in] October 2017. [In] November 2017 the applicant’s son departed Australia with his father. On 14 December 2017 the applicant lodged the application for a protection visa. In essence, the applicant claims to fear harm at the hands of her eldest brother and her (ex)husband. Her claims are that when she was in her final year of high school, her eldest brother, who was acting as her guardian following the death of her father, forced her into an arranged marriage with a Chadian man living in [Country 1] named [Mr A]. The applicant experienced serious physical, sexual and psychological violence from her husband [Mr A] in [Country 1] and Australia. When [Mr A] travelled to live in Australia, the applicant was sexually harassed by a friend of [Mr A] called [Mr B], who the applicant was living with in [Country 1]. The applicant refused [Mr B]’s advances and stayed at friends’ houses to avoid him. [Mr B] informed [Mr A] that the applicant was staying out at night, which caused [Mr A] to accuse the applicant of being a prostitute. He informed her family and the applicant’s eldest brother subsequently threatened to kill the applicant.