2428461 (Refugee) - [2025] ARTA 700

2428461 (REFUGEE) [2025] ARTA 700 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Ryan McCarthy
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2428461
Tribunal:General Member P Millar
Date: 20 January 2025

Place:Sydney
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)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicant meets s 36(2)(a) of the Migration Act.

Statement made on 20 January 2025 at 6:15pm
CATCHWORDS
REFUGEE – protection visa – Haiti – particular social group – single women – victim of domestic violence – gender-based violence – criminal gangs – access to health care – third country protection – state 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, 367A, 499
Migration Regulations 1994, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
MIMA v Khawar (2002) 210 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
MZAIC v MIBP [2016] FCAFC 25
Sandor v MICMA [2023] FCA 424
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be nationals of Haiti, applied for the visas on 11 November 2016. The first named applicant (“the applicant”) appeared before the Tribunal on 20 December 2024 to give evidence and present arguments for herself and her [age] year old daughter the second named applicant (“the applicant’s daughter”). The hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. The applicants were represented in relation to the review. The representative appeared at the hearing.
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 (“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.
Criteria 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).…

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 2428461 (Refugee)

Details

AGLC: 2428461 (Refugee) [2025] ARTA 700
Case: [2025] ARTA 700
Decision Date: 20 January 2025

CaseChat Overview and Summary

The applicant, a female from Haiti, and her daughter sought a protection visa following the delegate's refusal of their application. The Tribunal was tasked with determining whether the applicants satisfied the criteria for a protection visa under the Migration Act, specifically if they were refugees or if there was a real risk they would suffer significant harm if returned to Haiti. Key issues included the applicant's claims of domestic violence and gender-based persecution in Haiti, and whether these claims warranted protection under Australian law.

The Tribunal considered the applicant's evidence of her experiences in Haiti, including the impact of the 2010 earthquake, her subsequent abusive relationship, and the resulting fear that led her to seek safety in Australia. The Tribunal also evaluated the country information provided, assessing the social and political climate in Haiti relevant to the applicant's claims. The legal framework for determining refugee status and protection obligations was meticulously reviewed, including the definition of a "refugee" and the criteria for a protection visa.

After thorough consideration, the Tribunal found that the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act. The Tribunal concluded that the applicant's experiences in Haiti, particularly the gender-based violence and persecution, justified a well-founded fear of return. Consequently, the Tribunal set aside the delegate's decision and remitted the applications for reconsideration, confirming that both the applicant and her daughter satisfied the criteria for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.BACKGROUND The applicant is [an age] year old woman from Haiti. She arrived in Australia in October 2016 with a male (referred to as “[Partner A]”) from [Country 1] with whom she was in a de facto relationship. The couple came to Australia from [Country 2] where they had both been living and where they met each other. The couple applied for a protection visa in November 2016 both making claims for protection and including the applicant's daughter. This protection visa application was based on claims made by [Partner A] as to why he would suffer harm on return to [Country 2] or [Country 1]. As stated above, the delegate refused the application and [Partner A] lodged an application for review with the Tribunal on 21 May 2019. By letter dated 26 October 2021 the representative for [Partner A] advised that the applicant and the applicant’s daughter had mistakenly been omitted from the review application form. The representative confirmed that they were intended to be included as applicants for review having been subject to the refusal by the delegate. The representative provided an amended review application form including the applicant and the applicant's daughter and by letter dated 27 October 2021 the Tribunal acknowledged receipt of that amended application. By letter dated 24 July 2024 the applicant advised the Tribunal that her relationship with [Partner A] had ended in May 2024. The applicant requested that her application for review be heard and determined separately from the application for review by [Partner A]. By letter dated 27 August 2024 the representative requested that the applicant's daughter be added as a party to her separate review application. By letter dated 19 September 2024 the Tribunal advised the representative that based on documents provided demonstrating that the applicant was the primary carer for the applicant's daughter, she had been added as an applicant to this separate review application.CONSIDERATION OF CLAIMS AND EVIDENCE To the Tribunal, at the hearing, the applicant gave the following evidence on which the protection claims of the applicant and the applicant's daughter are based. The applicant was born in [Commune 1], Haiti in [specified year]. The applicant's father worked as a farmer and her mother worked as a seamstress. The family were members of the [Denomination 1] church. The applicant had [specified family members]. The applicant attended school in [Commune 1] until [year] when the family moved to live in [Town 1], an area in Port-au-Prince. Her parents chose to live there because her mother believed they would be better off financially.

Evidence

Evidence Before The Court

By letter dated 24 July 2024 the applicant advised the Tribunal that her relationship with [Partner A] had ended in May 2024. The applicant requested that her application for review be heard and determined separately from the application for review by [Partner A]. By letter dated 27 August 2024 the representative requested that the applicant's daughter be added as a party to her separate review application. By letter dated 19 September 2024 the Tribunal advised the representative that based on documents provided demonstrating that the applicant was the primary carer for the applicant's daughter, she had been added as an applicant to this separate review application.CONSIDERATION OF CLAIMS AND EVIDENCE To the Tribunal, at the hearing, the applicant gave the following evidence on which the protection claims of the applicant and the applicant's daughter are based. The applicant was born in [Commune 1], Haiti in [specified year]. The applicant's father worked as a farmer and her mother worked as a seamstress. The family were members of the [Denomination 1] church. The applicant had [specified family members]. The applicant attended school in [Commune 1] until [year] when the family moved to live in [Town 1], an area in Port-au-Prince. Her parents chose to live there because her mother believed they would be better off financially. The applicant continued to attend school in that new location for one year. She stopped attending school because she wanted to operate a [business 1]. The applicant was [age] years old at the time and commenced operating a [business 1] in the family home. In 2010 an earthquake occurred in Haiti in which the applicant's family home was destroyed. At the time the earthquake occurred, the applicant was helping in a church service away from the home. From the earthquake and the destruction of the family home, the applicant’s parents died as well as [specified siblings]. [One sibling] who survived now lives in [Country 2]. The applicant was offered a place to live by a male “[Mr A]” in his home. The applicant knew [Mr A] prior to the earthquake as [Mr A] knew the applicant's parents. The applicant entered into a relationship with this man who supported her financially. The applicant had to stay in the house when [Mr A] went outside and she did not know what he was doing. [Mr A] was abusive and violent in his behaviour toward the applicant. For this, the applicant approached the police who, in June 2011, arrested [Mr A] and held him in prison. The applicant then went to live in other premises owned by someone she knew who provided her with a room in which to stay. Approximately one month after the police arrested and imprisoned [Mr A], a neighbour told her that [Mr A] had bribed the authorities and was able to leave the prison. The applicant lived in fear that [Mr A] would try and harm her because she had reported him to the police. A person she knew told her that that person had been approached by someone asking where the applicant was living. From what she was told, the applicant understood that the person who made that inquiry was doing that for [Mr A] who was paying that person. In fear for her safety the applicant decided to leave Haiti.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).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 meets s 36(2)(a) of the Migration Act.Date of hearing: 20 December 2024Representative for the applicant: Mr McCarthy ATTACHMENT - 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

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