2311316 (Refugee) - [2024] ARTA 146

2311316 (Refugee) [2024] ARTA 146 (5 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2311316
Tribunal:General Member E Rutherford
Date:5 December 2024

Place:Adelaide
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the second named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

General Member E. Rutherford

Statement made on 5 December 2024 at 2:13 PM
CATCHWORDS
REFUGEE – protection visa – China – grandparents and young grandchild – original claims of COVID pandemic and restrictions – vulnerability of elderly and children – form completed by daughter/aunt – later claims of capacity to subsist and grandchild’s religion – grandparents’ age, health and treatment and limited relationship with and no support from other children, including grandchild’s father – grandchild’s personal and real interest in Christianity – language, education and church activities – country information – access to and quality of medical treatment not serious harm – ban on education about and practice of religion by children – possibility of bullying and psychological harm – members of family unit – child financially dependent on aunt, but psychologically dependent on grandparents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1),5AAA, 5J(1)(a), (3)(c)(i), 5H(1), 36(2)(a), (aa), (b)(i), (2A), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(2), 1.12(4)(d), Schedule 2, cl 866.221(3)
CASES
1812711 (Refugee) [2024] AATA 2314
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of China, applied for the visas on 1 March 2020. The delegate refused to grant the visas on the basis that claims raised by the primary applicant did not raise any ground specified in s 5J(1)(a) of the Act, and there was no other reason to suggest they would be subject to harm in China for one or more of the grounds specified. In addition, the delegate found that the applicants would not suffer significant harm as required by s 36(2A) of the Act.
The applicants appeared before the Tribunal on 26 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the primary and third applicants ([Dr A]) and her husband ([Mr B]). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
In these reasons, I have…

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 2311316 (Refugee)

Details

AGLC: 2311316 (Refugee) [2024] ARTA 146
Case: [2024] ARTA 146
Decision Date: 5 December 2024

CaseChat Overview and Summary

The applicants, consisting of a grandfather, grandmother, and their young grandson, were involved in a legal dispute concerning the grant of a protection visa. The applicants claimed they faced risks in their home country, China, due to the COVID-19 pandemic, the vulnerability of the elderly and children, and the prohibition on religious practices for children. The case was heard by the Tribunal, with evidence presented by the applicants and the daughter of the primary applicant, assisted by an interpreter. The applicants initially claimed that the elderly and children were at high risk of contracting COVID-19 and that the authorities in China were unable to protect them. The second and third applicants relied on their membership in the primary applicant's family unit.

The central legal issues before the court were whether the primary and third applicants, the grandfather and grandmother, were owed protection obligations under the Migration Act 1958, and if the second applicant, the grandchild, was owed such obligations and qualified as a member of the same family unit as the primary applicant. The court had to assess the claims of vulnerability due to the COVID-19 pandemic, the prohibition of religious practices for children, and the dependency of the grandchild on his grandparents.

The court concluded that the primary and third applicants did not meet the criteria for protection obligations as they were not considered particularly vulnerable to COVID-19 and did not face serious harm in China. However, the court found that the second applicant was owed protection obligations due to his genuine interest in Christianity, which could lead to bullying and psychological harm if he returned to China. The court also determined that the second applicant was a member of the same family unit as the primary applicant, satisfying the requirements for a protection visa.

The court's decision was to remit the matter to the Department for reconsideration in light of the findings that the second applicant qualified for a protection visa and was a member of the same family unit as the primary applicant.

Orders

Orders of the court

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Background

Background to the litigation

The applicants appeared before the Tribunal on 26 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the primary and third applicants ([Dr A]) and her husband ([Mr B]). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.BACKGROUND In these reasons, I have referred to [the first applicant] as the primary applicant or the grandfather, [the second applicant] as the second applicant or the grandchild, and [the third applicant] as the third applicant or the grandmother. The primary applicant claims to be [an Age] year old male. The third applicant, being the wife of the primary applicant, claims to be [an Age] year old female. The second applicant is their grandchild, [an Age] year old male. The applicants live in a regional town with [Dr A] and [Mr B].Evidence before the DepartmentProtection visa application Claims were advanced by the primary applicant only in the protection visa application, with the second and third applicants relying solely on their membership of the primary applicant’s family unit. However, it was clear from the text of the application that the claims advanced extended to both the second and third applicant. The claims stated by or on behalf of the primary applicant were that there was a ‘high risk of contracting the virus COVID19 during this worldwide epidemic season/year.’ The harm feared by the primary applicant was ‘bodily harm, such as being taken away by the authorities’. The primary applicant stated that the authorities of China were unable to protect each member of the population from the risk of Covid.Supporting documents With the application, the applicants uploaded their passports, as well as the national identity cards of the primary and third applicants, their family books, a letter of support from [Mr B], the grandchild’s birth certificate, a form 1447 ‘No Further Stay waiver request’, and a statement about the primary applicant’s employment history. The letter of support from [Mr B] attested to his own efforts to regularise the status of his wife’s family members in light of their soon expiring visitor visas, and the developing health crisis. He wrote:I hereby formally request an extension of their visas by three months or even a bridging Visa until this unfortunate crippling virus is brought under control and travel restrictions are lifted inside the People’s Republic of China, therefore allowing my wife’s family members the right to be able to return to their home and village without any restrictions or delay increasing the chances of contracting this deadly virus. The form 1447 is signed and dated 11 February 2020, and is to be used to request a waiver on a condition on visitor visas which prevents the holder from applying for most types of visas while in Australia. It includes a box with heading ‘Give details of why your circumstances are compassionate and compelling’. In this box, the following has been written on behalf of the primary and third applicants:Small children and the elderly are particularly vulnerable contracting infectious respiratory diseases.Hopefully we only need a couple months further stay and will travel back to China once the travel ban is lifted.

Evidence

Evidence Before The Court

The applicants live in a regional town with [Dr A] and [Mr B].Evidence before the DepartmentProtection visa application Claims were advanced by the primary applicant only in the protection visa application, with the second and third applicants relying solely on their membership of the primary applicant’s family unit. However, it was clear from the text of the application that the claims advanced extended to both the second and third applicant. The claims stated by or on behalf of the primary applicant were that there was a ‘high risk of contracting the virus COVID19 during this worldwide epidemic season/year.’ The harm feared by the primary applicant was ‘bodily harm, such as being taken away by the authorities’. The primary applicant stated that the authorities of China were unable to protect each member of the population from the risk of Covid.Supporting documents With the application, the applicants uploaded their passports, as well as the national identity cards of the primary and third applicants, their family books, a letter of support from [Mr B], the grandchild’s birth certificate, a form 1447 ‘No Further Stay waiver request’, and a statement about the primary applicant’s employment history. The letter of support from [Mr B] attested to his own efforts to regularise the status of his wife’s family members in light of their soon expiring visitor visas, and the developing health crisis. He wrote:I hereby formally request an extension of their visas by three months or even a bridging Visa until this unfortunate crippling virus is brought under control and travel restrictions are lifted inside the People’s Republic of China, therefore allowing my wife’s family members the right to be able to return to their home and village without any restrictions or delay increasing the chances of contracting this deadly virus. The form 1447 is signed and dated 11 February 2020, and is to be used to request a waiver on a condition on visitor visas which prevents the holder from applying for most types of visas while in Australia. It includes a box with heading ‘Give details of why your circumstances are compassionate and compelling’. In this box, the following has been written on behalf of the primary and third applicants:Small children and the elderly are particularly vulnerable contracting infectious respiratory diseases.Hopefully we only need a couple months further stay and will travel back to China once the travel ban is lifted. In a letter dated 5 March 2020, [Dr A] and [Mr B] wrote to the Department indicating their support for their family members to remain in Australia. The letter refers to them needing to stay in Australia ‘for more than 6 months, possibly until the end of the year or even longer before it is safe for them to travel internationally and reunite with the rest of the family in China’. On 5 March 2021, [Dr A] and [Mr B] again wrote to the Department with a further update about the applicants. The letter states:During the time of their stay and [Town 1], my [Age]-year-old nephew … has started full time education at … Primary School… Unfortunately, after suffering from a day of vomiting and vertigo, my father was diagnosed with cerebellar stroke… Considering the nature of the disease, it may take a long time of rehabilitation to help him get to the level of fitness as before the stroke attack.

Decision

Reasons for decision

I am therefore not satisfied that the primary or third applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).CONCLUSION For the reasons given above the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).Member of the same family unit Section 36(2)(b) of the Act and clause 866.221(3) of schedule 2 to the Regulations allow for the grant of a protection visa to a person who is a member of the same family unit as another person who has satisfied s 36(2)(a) on the basis of being owed protection obligations. A person is the member of the same family unit 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.[17][17] Migration Act 1958 (Cth), s 5. Member of the family unit is defined by reg 1.12 of the Regulations for the purpose of a protection visa in the following terms:(4) A person is a member of the family unit of another person (the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a dependent child of:(i) the family head; or(ii) a spouse or de facto partner of the family head; or(c) a dependent child of a dependent child of:(i) the family head; or(ii) a spouse or de facto partner of the family head; or(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:(i) does not have a spouse or de facto partner; and(ii) is usually resident in the family head’s household; and(iii) is dependent on the family head. The word ‘relative’ is defined within reg 1.03 to include a grandchild. ‘Dependent’ is defined by reg 1.05A(2) for the purpose of a protection visa to mean that the person ‘is wholly or substantially reliant on the other person for financial, psychological or physical support’. I have evidence before me of the grandchild’s dependency on each of the adults in his household. I consider that he is dependent on his aunt predominantly for his financial needs. However, the fact that he was raised by his grandparents from birth is strongly suggestive of him remaining dependent on them psychologically despite no longer being dependent on them financially or physically. The grandfather and [Dr A] both gave evidence that the bond between the grandchild and his grandparents remains extremely close, and I am satisfied that this amounts to a continued dependency on them for psychological support. They continue to reside in the same household. I therefore find that the grandchild is a member of the primary applicant’s family unit by operation of reg 1.12(4)(d).

Ratio Decidendi

Legal Principle Established

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