2400637 (Refugee) - [2024] AATA 2267

2400637 (Refugee) [2024] AATA 2267 (15 March 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division
CASE NUMBER:  2400637
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:  James Lambie
DATE:  15 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 March 2024 at 10:38am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – fear of harm from ex-partner – assaulted, tortured and almost killed – found after relocating – threats because of new partner – delay in applying for protection – no appearance at hearing – brief and general claims – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211
CASES
BZADA v MIAC [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT [1997] FCA 423
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 8 January 2024 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 Vanuatu, applied for the visa on 20 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). .

CRITERIA FOR A 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…

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 2400637 (Refugee)

Details

AGLC: 2400637 (Refugee) [2024] AATA 2267
Case: [2024] AATA 2267
Decision Date: 15 March 2024

CaseChat Overview and Summary

The applicant, a citizen of Vanuatu, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse their application for a protection visa. The applicant claimed to fear harm from their ex-partner, alleging past experiences of assault, torture, and near-fatal violence. They further contended that the ex-partner had located them after they relocated and had made threats, allegedly motivated by the applicant's new partner.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically for the reason of membership of a particular social group, namely women in a relationship with a particular man, or for the reason of political opinion, or for any other Convention reason. The court was required to assess the credibility of the applicant's claims, consider the country information relevant to Vanuatu, and determine if the applicant's fear of harm was objectively reasonable.

In reaching its decision, the court noted the applicant's failure to appear at the hearing and the general and brief nature of the claims presented in their submissions. The court considered the available country information, which did not provide specific support for the applicant's particular circumstances or the alleged threats. Applying the principles of refugee law, the court found that the applicant had not discharged the onus of establishing a well-founded fear of persecution. The court affirmed the decision under review.

Orders