2312039 (Refugee) - [2024] AATA 4162

2312039 (Refugee) [2024] AATA 4162 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Paola Andrea Aristizabal Ramirez
CASE NUMBER:  2312039
COUNTRY OF REFERENCE:                   Angola
MEMBER:Nicole Burns
DATE:6 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 06 September 2024 at 4:45pm

CATCHWORDS
REFUGEE – protection visa – Angola – fear of harm from neighbour after reporting him to police – threatened, kidnapped, tortured and raped, and family members attacked and killed – police inaction and corruption – single mother and victim of gender-based violence – mental health – young adult children’s physical and mental health – specific, detailed and generally consistent claims and evidence – inconsistencies because of passage of time and trauma – perpetrator of and motivation for attacks on family members unclear – delay in departure because of lack of funds and concern for children’s safety – fear of harm from neighbour not for refugee criteria reason, and does not relate to all areas of country – complementary protection – country information – treaty right to enter and reside in neighbouring countries limited in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
AGA16 v MIBP [2018] FCA 628
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
MIMAC v SZRHU (2013) 215 FCR 35
SZTOX v MIBP [2015] FCAFC 77

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 7 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old woman from Luanda, the capital of Angola. She came to Australia [in] September 2018 holding a visitor visa and applied for the protection visa on 15 November 2018.
The applicant appeared before the Tribunal on 27 March 2024 and 9 May 2024 to give evidence and present arguments about the issues in her case. The Tribunal hearings were conducted with the assistance of an interpreter in the Portuguese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearings.
The issue in this case is whether the applicant meets the criteria for a protection visa as a refugee or under the complementary protection provisions (set out below). For the following reasons, the Tribunal has concluded that the matter should be remitted for…

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 2312039 (Refugee)

Details

AGLC: 2312039 (Refugee) [2024] AATA 4162
Case: [2024] AATA 4162
Decision Date: 6 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa application of a woman from Angola. The applicant claimed she feared serious harm upon return to her home country due to reporting a former neighbour for sexual abuse, and more broadly, as a single mother and victim of gender-based violence. She also expressed concerns about discrimination and lack of support for her mental health issues.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) concerning refugee status, or alternatively, under section 36(2)(aa) of the Act for complementary protection. This required the Tribunal to assess the credibility of her claims, the nature of the harm she feared, and whether such harm was a real and foreseeable consequence of her removal from Australia. The Tribunal also had to consider relevant country information regarding Angola and the practical limitations of treaty rights in neighbouring countries.

The Tribunal found that while the applicant's claims were generally consistent and detailed, certain aspects, such as the perpetrator and motivation for attacks on her family members, remained unclear. The Tribunal accepted that the applicant had experienced significant trauma, which could explain some inconsistencies in her evidence due to the passage of time and the impact of her experiences. However, the Tribunal determined that her fear of harm from her former neighbour was not for a reason that engaged Australia's refugee obligations, nor did it relate to all areas of Angola. The Tribunal also considered the applicant's treaty rights to enter and reside in neighbouring countries, finding these limited in practice.

Consequently, the Tribunal remitted the decision under review. This indicates that the original decision was found to be flawed, and the matter will be reconsidered, likely with a focus on the complementary protection grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Presently the applicant works [at] [Workplace]. She is estranged from her two sons in Australia. She sends money to her daughter in Angola to help pay for [Son 3]’s rehabilitation costs, among other things. PROTECTION CLAIMS AND EVIDENCE In summary the applicant claims to fear serious harm on return to Angola from a former neighbour ([Mr K]) and/or his associates because she reported him to the police for sexually abusing his daughter ([Ms L]), in 2013, when [Ms L] was [Age]. More broadly, she claims to fear serious harm on return as a woman and single mother who has been a victim of gender-based violence (GBV) in the past. She is also concerned she will face discrimination and lack of support for her mental health issues. Initially the applicant set out her protection claims in the protection visa application, stating in summary the following (relevant to the matter with [Mr K]):a.On 24 April 2013 her [second son] called her at work and told her [Ms L]’s father had raped her. After returning home the applicant took [Ms L] to the doctor who confirmed the rape and took photographs as evidence. The applicant made an official police report and on 26 April 2013 the police arrested [Ms L]’s father, [Mr K] on rape charges. He paid USD4,000 to police prosecutor [Mr M] and was released.b.[In] July 2013 the applicant wrote a letter to the Director General of Criminal Investigations [about] the case. There was no response so the applicant wrote again. They then arrested [Mr K] and locked him up for seven months before he was released. c.On 1 December 2013 [Mr K] found the applicant, pushed her against a wall and threatened to kill her. He also threatened and falsely accused her [second son]: he was sent to prison in Angola [in] December 2013. Shortly after he was released his father in Australia sent [her second son] a ticket to go to Australia [in] May 2014. d.On 29 September 2017 the applicant’s niece was stabbed to death. She received a message via people from [Mr K] that that was just the beginning.e.The applicant reported the threats to her manager at work but no action was taken. He advised her to move house.f.On 24 May 2018 the applicant’s then partner [Mr D] was hit on his head with a stick and died three days later. Once more she received a message saying there was more to come.g.On 15 June 2018 the applicant was kidnapped. She was forced into a car by two men unknown to her; had her hands, eyes and mouth tied; was driven to an unknown location where [Mr K] was; and when there was tortured and raped over a three-day period.h.[In] July 2018 the applicant went to [Country 3] with [Son 3 and Daughter 1]. On 12 July 2018 her children were attacked, and [Son 3] was stabbed in the neck with a bottle.i.She applied for visitor visas to Australia and [another country] from [Country 3]. j.[Son 3 and Daughter 1] have disappeared in [Country 3]. Documents the applicant provided to the Department in support of the protection visa application included:·A copy of a translated letter from the applicant to the Director of the Department of Criminal Investigations (Angola) dated [July] 2013. In it she states that [Ms L] has been sexually abused by her father ([Mr K], a [Country 5] national); results of the exams performed by the gynaecologist at the Crime Laboratory on [date] April this year were negative, according to instructor [Mr M]; and the accused was therefore released, since there was no evidence against him. Before she reported the matter, the applicant explains she took [Ms L] to [a] maternity centre, where the midwives examined her; as it was a Sunday there was no physician to write a report, and the midwife asked her to take photographs with her mobile. She adds that she doubts the results of the exams were negative. ·A copy of a translated letter from the Provincial Court of Luanda dated [December] 2013. ·A copy of a translated letter from the Luanda Military Region Attorney's Office dated [January] 2014. ·A copy of translated Marching Orders from the [police force department] dated [January] 2014. ·A copy of a translated letter from the Provincial Department of Crime Investigation (Angola) dated [September] 2014. ·A copy of a translated letter from the Provincial Department of Crime Investigation (Angola) dated [September] 2014.·A copy of a letter from a registered clinical psychologist in relation to the applicant dated 26 June 2020.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she 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 he or she 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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As there is no DFAT report for Angola, the Tribunal has relied on country information from other sources in considering whether the applicant’s fears of persecution on return to Angola are well founded, which are discussed in more detail below. Background Based on the applicant’s generally consistent evidence before the Department and Tribunal, the Tribunal accepts the following about her background, including her family composition and work history (in summary): a.The applicant was born in Angola in [Year], [before] the civil war began. She fled to [Country 1] when young, along with her mother and siblings, returning to Angola at [age] years of age where her mother left her with an uncle. At around [age] her brother died. She went back to [Country 1] where she attended school and stayed with her mother as her uncle was not treating her and her siblings well.b.In 1992, when the situation improved in Angola, the applicant returned home. She went back to [Country 1] in [year] to complete school, before returning to Angola again. c.In terms of her work history, the applicant worked in the [work sector] in Lunda Norte province (located around 650 kilometres from Luanda), then as [an occupation 1] for a private company from 2000-2002 in Luanda. After that she started a business buying [product] and reselling it at market. d.The applicant joined the Angola police force in 2008. After training she joined the [named Department] under the umbrella of the national police, first [doing job task] and then in [another] area of the same department after completing studies in [subject] (in 2015). She worked as a police officer up until she left the country. (The Tribunal notes she provided evidence of being a police officer in the past in Angola to the Department in the form of her police identity card dated 2017 containing a photograph of her in uniform, and the delegate accepted her claims to have been with the Angolan police force.)e.The applicant has been married twice and has four children as follows: i.Her first husband was [Mr A] who is an Australian citizen originally from [Country 1]. They met when the applicant was visiting her uncle ([based] in [Country 1]) in 1996 whilst [Mr A] was visiting his relatives there, from Australia. They had a traditional marriage in Angola before [Mr A] returned to Australia promising he would sponsor the applicant to join him. They had two sons: [the eldest] born in [Year], and [the second son] (whom the applicant refers to as ‘[Second given name]’ in the protection visa application form), born in [Year] in Angola. [Mr A] took [their eldest son] to Australia as a baby (aged [age]), with the promise that the applicant would join them, however this did not eventuate. Their relationship ended in 1998 when the applicant found out [Mr A] had a wife and children in Australia and never intended to sponsor her. [The second son] moved to Australia when he was [age]. Both [the eldest son] and [the second son] are Australian citizens and have their own children. ii.Her second husband was [Mr D], originally from [Country 1], whom the applicant met when she was living and working in Lunda. [Mr D] was working illegally [there]. They married in 2000 and had two children: a son, [Son 3], born in [Year], and a daughter, [Daughter 1] born in [Year]. They separated in 2008 because [Mr D] converted to Islam and the applicant – who is Christian – refused to do so. The applicant and her children moved to Luanda and [Mr D] had nothing to do with them until he and the applicant got back together in 2014. He continued to work in Lunda, and the applicant continued to work (as a police officer) in Luanda: they would visit one another on weekends and during holidays. [Mr D] was assaulted in around mid-2018 at a bus stop in Luanda, whilst visiting the applicant and obtaining medical treatment in the capital. He died a few days later, after his father had transported him to hospital in [Country 1].