2422188 (Refugee) - [2024] ARTA 926

2422188 (REFUGEE) [2024] ARTA 926 (19 DECEMBER 2024)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2422188

Tribunal:General Member S Nyabally
Place:Melbourne
Date:19 December 2024

CORRIGENDUM
Date of Corrigendum:4 February 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the statement of reasons for the decision:
Paragraph 65 of the written statement of reasons for the decision is altered to read:
‘As South Africa is a member of the Southern African Development Community (SADC), the Tribunal has considered whether the applicants have a right to enter and reside in a safe third country, being one of the SADC member states.’
AND
·Paragraphs 66 and 67 of the written statement of reasons for the decision are omitted.
·

Statement made on 4 February 2025 at 09:43am
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2422188

Tribunal:General Member S Nyabally
Date:19 December 2024

Place:Melbourne
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)the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 19 December 2024 at 09:58am
CATCHWORDS
REFUGEE – protection visa – South Africa – particular social group – women – victim of family violence – race – Zulu ethnicity – gender-based violence – physical assault – fear of killing – state protection – internal relocation – third country protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12
CASES
AGA16 v MIBP [2018] FCA 628
MIMAC v SZRHU (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391
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

This is an application for review of decisions made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicants Subclass 790 Safe Haven Enterprise (subclass 790) visas (protection visas) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicants were granted Visitor (subclass 600) visas on 17 and 23 October 2023 respectively. Those visas were cancelled on 25 March 2024, while the applicants were in transit to Australia.
The applicants arrived in Australia [in] March 2024. They have not subsequently departed Australia and are currently accommodated in community detention.
The applicants applied for the protection visas on 12 April 2024. The delegate refused to grant the protection visas on 10 July 2024.
The applicants applied for review of the delegate’s decisions…

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 2422188 (Refugee)

Details

AGLC: 2422188 (Refugee) [2024] ARTA 926
Case: [2024] ARTA 926
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case, 2422188 (Refugee), involved two South African applicants seeking protection visas. The applicants, who are citizens of South Africa, sought asylum in Australia on the basis of alleged persecution they faced due to their Zulu ethnicity and their status as women in South Africa. The Tribunal was tasked with determining whether the applicants met the criteria for a protection visa under the Migration Act 1958 (Cth). Specifically, the Tribunal had to decide whether the applicants were refugees or qualified for complementary protection.

The primary legal issues centered on whether the applicants had a well-founded fear of persecution for reasons of their race, Zulu ethnicity, and membership in the particular social group of women from South Africa. The Tribunal also had to assess whether the applicants could seek protection within South Africa or if there were circumstances that would make it unreasonable to expect them to do so. The Tribunal examined the applicants' claims, the country information provided, and the evidence submitted to determine if the applicants' fear of persecution was well-founded and if state protection was unavailable or ineffective.

The Tribunal concluded that the first applicant met the criteria for a refugee under section 36(2)(a) of the Migration Act due to her well-founded fear of persecution on account of her Zulu ethnicity and her membership in the particular social group of women from South Africa. The Tribunal found that the first applicant's claims were credible, particularly regarding the physical abuse she suffered from her partner, T. The Tribunal was satisfied that the first applicant faced a real chance of persecution if she were to return to South Africa, as evidenced by the severe and ongoing abuse she had experienced. The second applicant, as a member of the same family unit, was also entitled to a protection visa if the first applicant met the refugee criterion. Consequently, the Tribunal set aside the decisions under review and remitted the applications for a protection visa for reconsideration.

The final orders of the Tribunal were that the first named applicant met the criteria in section 36(2)(a) of the Migration Act, and the second applicant satisfied section 36(2)(b)(i) of the Act, based on membership of the same family unit as the first named applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Where relevant, the applicants’ submissions and evidence are referred to in the Tribunal’s findings and reasons belowCONSIDERATION 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 (PSG) 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 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.FINDINGS AND REASONS

Decision

Reasons for decision

The Tribunal has not considered whether L is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that L is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that L will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:(i) the first named applicant meets s 36(2)(a) of the Migration Act; and(ii)the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Representative: Ms Emma MulrooneyDate of hearing: 12 November 2024ATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration. Given its ultimate conclusion that the first applicant meets s 36(2)(a) of the Act on the basis of the risk of harm she faces for the combined reasons of her Zulu ethnicity and her membership of the PSG, ‘women from South Africa’, the Tribunal has only addressed the applicants’ claims to the extent that they are relevant to its findings.Country of nationality The applicants have provided copies of their passports from South Africa. They have consistently claimed to be from South Africa. There are no apparent concerns with the applicants’ identities. The Tribunal is satisfied that the applicants are citizens of South Africa. The Tribunal is satisfied that South Africa is their receiving country and has assessed the first applicant’s claims against that country. The first applicant’s claims for protectionPersonal background The first applicant gave evidence that she was born and raised in [District 1], Johannesburg. Her father is deceased, and her mother and [siblings] reside in Johannesburg. The first applicant is close to her mother and siblings and remains in regular contact with them. The first applicant attended school until she was around [age range] years old. She did not complete any further education as her family could not afford it.Relationship with T The first applicant met T in about [specified year]. They began a relationship, and she fell pregnant quickly after. When the first applicant told T about the pregnancy he initially denied that the child was his, but eventually accepted that he was the father. Their [Child A] was born on [date]. Between [specified year] and 2010 T was largely absent from the first applicant and [Child A's] lives. He would disappear for months at a time, reappearing only to provide necessities for [Child A] then disappearing once again. T returned to the first applicant in 2010, claiming to have ‘grown up’ and asking to reunite with her and their child. After obtaining the consent of the first applicant’s mother and brother, T paid a dowry (or ‘lobola’) [specified] for having disrespected the first applicant’s family when he left her to look after [Child A] alone. The first applicant and [Child A] moved in with T shortly after. By this time T had opened a small company which conducted [specified work]. His business did well, and he hired several people to work for him. T would travel throughout South Africa for work, as well as to [other countries]. T’s violence against the applicants T began to abuse the first applicant soon after they reconciled. He initially abused her emotionally and financially, telling her that she was ‘not worthy’ of him and withholding money for household necessities. T’s conduct soon progressed to physical abuse, and T began regularly beating the first applicant. T would beat the first applicant with a [weapon][2] and, if it was not nearby, he would hit the first applicant with whatever he could reach. The first applicant’s children witnessed many of these beatings. [2] [Source deleted.]