1310666 (Refugee) - [2015] AATA 3524

1310666 (Refugee) [2015] AATA 3524 (12 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1310666
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Susan Pinto
DATE:12 October 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 12 October 2015 at 2:42pm

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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Sri Lanka. He is aged in his early 30s. His ethnicity is Tamil and his religion is Hindu. The applicant was born in [his home town], [in his home district] in the Northern province of Sri Lanka where he resided until he left Sri Lanka in [year] at the age of [age] and travelled to India where he resided in a refugee camp in Tamil Nadu. The applicant resided in India until his departure by boat for Australia in June 2012. The applicant arrived in Australia as an Unauthorised Maritime Arrival [in] June 2012.
The applicant applied to the Department of Immigration for the Protection visa [in] November 2012. The applicant claimed that his father assisted the Liberation Tigers of Tamil Eelam (LTTE) during the civil war and was subsequently tortured by the Sri Lankan Army. The applicant claimed that his father committed suicide and his mother left Sri Lanka with himself and his sister for India and they have never returned. The applicant claims that due to his father’s involvement with the LTTE, his lengthy absence from Sri Lanka and the fact that he has sought asylum in Australia, that he will be harmed upon his return to Sri Lanka.
The delegate of the Minister for Immigration refused to grant the visa [in] July 2013.The delegate accepted that the applicant’s family fled to India in [year] because of the Sri Lankan civil war. The delegate also accepted that the applicant’s father [performed specific tasks] for the LTTE and his father was tortured and as a result of the torture he later took his own life. The delegate considered the situation for returnees from India to Sri Lanka as well as those who had sought asylum in Western countries, but was not satisfied that there was a real chance or a real risk the applicant would suffer serious or significant harm. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
A summary of the relevant law is set out in an attachment to this decision. The issues for the Tribunal’s consideration are whether the applicant has a well founded fear of persecution for one or more of the five…

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: [2015] AATA 3524
Decision Date: 12 October 2015

CaseChat Overview and Summary

The case before the Tribunal involves a Sri Lankan national who applied for a protection visa. The applicant claimed that he had a well-founded fear of persecution if returned to Sri Lanka, due to his Tamil ethnicity and past experiences with the Sri Lankan government. The Tribunal was tasked with determining whether the applicant met the criteria for a protection visa under the Migration Act 1958. This required the Tribunal to assess whether the applicant had a well-founded fear of persecution on one or more of the specified grounds under the Refugees Convention, or if there were substantial grounds to believe that he would suffer significant harm if removed from Australia.

The Tribunal considered the applicant's evidence, which included his personal history, the historical context of Tamil persecution in Sri Lanka, and his family's displacement to India. The Tribunal examined whether the applicant's fear of persecution was well-founded and whether he met the criteria for a protection visa under the Act. The Tribunal found that while the applicant's account of past persecution was credible, there was insufficient evidence to establish a well-founded fear of future persecution. Additionally, the Tribunal concluded that there were no substantial grounds to believe that the applicant would suffer significant harm if returned to Sri Lanka.

In light of the findings, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under section 36(2) of the Act. The decision was made by Susan Pinto, a member of the Tribunal.

The final orders of the Tribunal were to affirm the decision not to grant the applicant a protection visa. The applicant was not satisfied of meeting the criteria for a protection visa, and therefore, the application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A summary of the relevant law is set out in an attachment to this decision. The issues for the Tribunal’s consideration are whether the applicant has a well founded fear of persecution for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason it must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm. CLAIMS AND EVIDENCEInitial entry The applicant attended an Entry Interview for the purposes of initial entry processing [in] July 2012. [in] October 2012 he was granted a Bridging visa and released from detention. Application to the Department The applicant indicated on the application form that he speaks, reads and writes Tamil. The applicant stated that he is unmarried and has no children. The applicant indicated that his father is deceased and his mother and [sibling] reside in refugee camps in India. The applicant stated that he undertook a Bachelor degree and a Master degree in India. He indicated that he was employed for [an agency] prior to his departure from India. In a statement provided with the application, dated [in] November 2012, the applicant stated that he is a citizen of Sri Lanka and does not have citizenship or the right to reside in any other country. The applicant states that in [year] it was very dangerous for Tamils in Sri Lanka. The Sri Lankan Army (SLA) was taking many Tamil people away and there was a lot of fighting. The applicant’s father died in [year] and his mother thought it was too dangerous to stay in [his home town] and she took the family to India. There were many Tamils leaving at that time because of the way they were treated. When they arrived in India they were sent to [a] refugee camp in Tamil Nadu. The applicant lived in that camp until he left India for Australia. His mother is still in that camp but his sister married and moved to [another] Camp which is about [distance] away. The applicant has been living as a refugee since he was [age] years of age. He has been able to work and study in India, but he cannot obtain residency or citizenship. He had no legal rights and did not know when he will be required to leave. The applicant states that he fears returning to Sri Lanka. He left there as a child because of the persecution of Tamils by the Sri Lankan government and has not returned since that time. He has no place to go and no family. His accent is different because he has been living in India for so long and everyone will know he has been living away. The applicant is scared that the police will accuse him of helping the LTTE because he has been away. The applicant has heard from many people that if the army thinks someone has been helping the LTTE they will take them away and beat them and often people disappear forever. Because his family had to escape from the violence he does not know what will happen and he is scared of going back. The applicant has nowhere to go in Sri Lanka and because he is an outsider he is scared what the police and security forces will think he has been doing. The applicant does not know exactly why they left when he was a child but he does know it was because so many Tamils were taken away and killed. The applicant knows that his mother feared for their safety.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Susan PintoMemberATTACHMENT - RELEVANT LAW In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.Refugee criterion Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

Ratio Decidendi

Legal Principle Established

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