2412103 (Refugee)

Case [2024] ARTA 151

2412103 (Refugee) [2024] ARTA 151 (5 November 2024)

Decision and
Reasons for Decision

Respondent:

Minister for Home Affairs

Tribunal Number:

2412103

Tribunal:

General Member F Robertson

Place:

Perth

Date of written statement:

5 November 2024

Decision:

The Tribunal affirms the decision under review.

Statement made on 05 November 2024 at 1:00pm

CATCHWORDS

REFUGEE – protection visa – Morocco – Federal Circuit and Family Court remittal – fear of harm from father and cousins – lifestyle and refusal to marry relative – locked in room and beaten – father and cousins’ political connections – delay in applying for protection – period as unlawful non-citizen, escape from immigration detention, criminal conviction, request for voluntary removal withdrawn and attempted removal abandoned – vague and unconvincing claims and no supporting evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), r 1403(3)(d), Schedule 2

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), Schedule 16, items 1, 24(4), (6), (7), (8)

CASES

ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271

AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227

CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496

DQU16 v MHA [2021] HCA 10; 273 CLR 1

EIG17 v MICMA [2023] FedCFamC2G 804

Fox v Percy [2003] HCA 22; 214 CLR 118

MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505

MIEA v Guo [1997] HCA 22; 1997 CLR 559

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA [1994] FCA 301; 34 ALR 347

Sundararaj v MIMA [1999] FCA 76

SZLVZ v MIAC [2008] FCA 1816

W375/01A v MIMA [2002] FCAFC 89; 67 ALD 757

2300587 (Refugee) [2023] AATA 1557

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

INTRODUCTION

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

  2. The applicant is a Moroccan national who claims to fear harm from his father and family in Morocco. The delegate rejected his claims as lacking in credibility. The applicant seeks that the decision of the delegate be reviewed.

  3. For the following reasons, I have determined that the decision under review should be affirmed.  

    BACKGROUND

  4. The applicant is a [Age]-year-old Moroccan national who arrived in Australia [in] December 2015 and applied for a protection visa on 9 December 2022.

  5. The application for a protection visa claimed to fear harm from his family and because he refused to marry his relative. He claimed that he had been held in a room for over a year and was beaten weekly with a belt and a knife, which left him with scars on his [body].…

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AGLC
2412103 (Refugee) [2024] ARTA 151
Case
[2024] ARTA 151
Decision Date

CaseChat Overview and Summary

The applicant from Morocco sought a judicial review of the decision of the Administrative Review Tribunal (ART) to affirm the delegate’s decision to refuse him a protection visa. The Federal Circuit and Family Court was tasked with reviewing the decision of the ART, which had upheld the delegate's refusal to grant the applicant a protection visa. The key legal issues the court had to address included the credibility and sufficiency of the applicant's claims, the definition and application of the refugee criterion and the complementary protection criterion, and the implications of the transitional provisions from the Administrative Appeals Tribunal to the ART.

The court examined the applicant's claims that he feared persecution due to his father and cousins' political affiliations and his refusal to marry a relative, leading to incidents of confinement and physical abuse. The court found the applicant's claims to be vague and unconvincing, lacking in supporting evidence and detail. The court noted that the applicant had delayed in applying for a protection visa, had been an unlawful non-citizen, had escaped from immigration detention, had a criminal conviction, and had withdrawn a request for voluntary removal. The court concluded that the Tribunal had correctly considered the applicant's claims, the evidence provided, and the applicable legal standards.

After reviewing the transitional provisions, the court affirmed that the review application should continue under the new law, with the ART now handling the proceedings. The court found that proceeding with the hearing on the scheduled date was fair and efficient. The court ultimately upheld the decision of the ART, finding that the Tribunal had correctly applied the law in determining that the applicant did not meet the criteria for a protection visa. The court's decision was that the delegate's decision to refuse the applicant a protection visa was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant sought judicial review of that decision, which application was allowed by consent on the basis that the Tribunal had wrongly determined the applicant's application on the basis that it should have conducted the review on the basis that the applicant had applied for a permanent protection visa and not a SHEV.[5] The review application was remitted to the AAT for further hearing and determination according to law. [5] See Migration Regulations 1994 (Cth), r 1403(3)(d). Subsequent Tribunal proceedings and decision On 25 September 2024, the applicant was invited to a hearing. That hearing was to be held on 1 November 2024. On 14 October 2024, the AAT was abolished, and the Administrative Review Tribunal ('ART') was established. At the same time, Part 7 of the Act was repealed, and Part 5 of the Act was substantially amended. The transitional provisions contained in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the 'Transitional Act') provide that review applications made to the AAT but not finalised before 14 October 2024 are taken to be applications for review to the ART. The effect of the Transitional Act is that this review application must be continued, as far as possible, by applying the Act in its present form.[6] Review applications previously dealt with under the former Part 7 of the Act are now dealt with under Part 5 of the Act as 'reviewable protection decisions'. The Transitional Act also expressly provides that:(a)anything done in, or in relation to, the proceeding before the transition time continues to have effect for the purposes of, or in relation to, the proceeding (as the case requires) after the transition time;[7](b)anything done in, or in relation to, the proceeding before the transition time that was valid under, or done in accordance with, the old law is taken to be valid under, or to have been done in accordance with, the new law for the purposes of the proceeding after the transition time;[8] (c)anything done in, or in relation to, the proceeding before the transition time by the AAT is taken, after that time, to have been done by the ART.[9][6] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(4).[7] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(6).[8] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(7).[9] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(8). I am satisfied that the applicant was validly invited to a hearing under the 'old law'[10] and that the invitation to the hearing is taken to have been done by the ART.[11] I am satisfied that it was fair and efficient to proceed with the hearing on 1 November 2024. [10] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 1.[11] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Sch 16, item 24(8).

Ratio Decidendi

Legal Principle Established

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.[13] Among other things, persecution must involve serious harm[14] and systematic and discriminatory conduct.[15][13] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[14] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.[15] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[16] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[17] [16] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[17] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[18] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[19][18] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[19] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).ANALYSIS, FINDINGS AND REASONS An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[20] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[21] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[22][20] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).[21] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J). [22] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).