2315717 (Refugee) - [2024] ARTA 889

2315717 (REFUGEE) [2024] ARTA 889 (17 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2315717

Tribunal:General Member L Hill
Date:17 December 2024

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 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 national of China, applied for the visa on 12 May 2021. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) of the Act.
On 2 October 2023, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 28 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 13 December 2024. The applicant did not appear before the Tribunal on the day and at the scheduled time and place.
Can a decision be made without holding a hearing?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision in a proceeding without a hearing.
Relevantly, subsection 106(5) of the ART Act states that if a party to the proceeding (other than a non-participating party) fails to a appear at a case event, despite having received appropriate notice of the case event’s date, time and place then the Tribunal can proceed to make a decision without a hearing. Section 4 of ART Act defines a case event as including the hearing, or part of the hearing, of the proceeding.
On 28 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 13 December 2024. Amongst other things, the hearing invitation advised the applicant to contact the Tribunal as soon as possible if he was not available to attend or believed that he would experience any difficulties in participating in the hearing as arranged. The applicant was also asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.
The hearing invitation also set out what would happen if the applicant did not appear at the…

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.

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Details

Case: [2024] ARTA 889
Decision Date: 17 December 2024

CaseChat Overview and Summary

The case involves an applicant from China who applied for a protection visa under the Migration Act 1958 (Cth), appealing a decision by the delegate of the Minister to refuse the application. The applicant sought protection due to imputed political opinion, advocating for freedom of speech, and past detention and torture. The matter was heard by the Administrative Appeals Tribunal (AAT), which was tasked with reviewing the decision made by the delegate.

The legal issues before the AAT included whether the applicant met the criteria for a protection visa under section 36(2) of the Act, specifically if he qualified as a refugee under section 36(2)(a) or on complementary protection grounds under section 36(2)(aa). The AAT had to determine whether the applicant had a well-founded fear of persecution due to his political opinion or if there was a real risk of significant harm if returned to China. Furthermore, the AAT considered whether it could make a decision without holding a hearing, given the applicant's non-attendance at the scheduled hearing.

The AAT found that the applicant did not meet the criteria for a protection visa. The Tribunal concluded that the applicant's claims were not genuine and did not establish a well-founded fear of persecution or a real risk of significant harm. The Tribunal also determined that it could proceed without a hearing as the applicant did not attend and failed to respond to reminders, and the issues could be adequately determined based on the existing evidence.

The AAT affirmed the decision of the delegate to refuse the application for a protection visa. The Tribunal found that the applicant's claims did not meet the necessary criteria and there was insufficient evidence to support a finding of a well-founded fear of persecution or real risk of significant harm. The applicant's failure to attend the hearing and provide further evidence or submissions also supported the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 20 September 2023, the delegate of the Minister made a decision to refuse to grant the applicant a protection visa under s 65 of the Act. The delegate was not satisfied that the applicant’s claims were genuine and concluded that he was not a person whom Australia had protection obligations as outlined in paragraphs 36(2)(a) or 36(2)(aa) of the Act.CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision. 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

Decision

Reasons for decision

On 28 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 13 December 2024. The applicant did not appear before the Tribunal on the day and at the scheduled time and place.Can a decision be made without holding a hearing? Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision in a proceeding without a hearing. Relevantly, subsection 106(5) of the ART Act states that if a party to the proceeding (other than a non-participating party) fails to a appear at a case event, despite having received appropriate notice of the case event’s date, time and place then the Tribunal can proceed to make a decision without a hearing. Section 4 of ART Act defines a case event as including the hearing, or part of the hearing, of the proceeding. On 28 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 13 December 2024. Amongst other things, the hearing invitation advised the applicant to contact the Tribunal as soon as possible if he was not available to attend or believed that he would experience any difficulties in participating in the hearing as arranged. The applicant was also asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal. The hearing invitation also set out what would happen if the applicant did not appear at the scheduled hearing, that being that the Tribunal may make a decision on the review without taking any further action or may dismiss the application without any further consideration. On 6 December 2024 and 12 December 2024, SMS reminders about the hearing were sent to the applicant’s mobile phone. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with subsection 379A(5) of the Act, and the notice has not been returned to sender. The Tribunal is also satisfied that SMS reminders were also sent to the applicant about the hearing. The Tribunal is satisfied that the applicant received appropriate written notice of the date, time and place of the hearing: paragraphs 106(5)(b) and (c). The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal allowed a period after the scheduled hearing time for the applicant to appear or contact the Tribunal. The applicant did not contact the Tribunal during this period. Accordingly, the hearing was cancelled due to the applicant’s non-attendance on 13 December 2024 at 10:15am AEST. The Tribunal is satisfied that the applicant failed to appear at the scheduled hearing: paragraph 106(5)(a). Paragraph 106(5)(d) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the absence of the parties to the proceeding. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.

Ratio Decidendi

Legal Principle Established

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