1311582 (Refugee) - [2015] AATA 3350

1311582 (Refugee) [2015] AATA 3350 (23 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1311582
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Susan Pinto
DATE:23 September 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 23 September 2015 at 3:28pm

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 [age]. His ethnicity is Tamil and his religion is Hindu. He resided in [a] Town in Batticaloa District in the Eastern Province of Sri Lanka until his departure by boat for Australia [in] June 2012.
The applicant applied to the Department of Immigration for the Protection visa [in] November 2012. The applicant claimed that as a result of his involvement in the Tamil National Alliance (TNA) he was assumed to have links with the LTTE. The applicant claims that he was the victim of extortion by a Tamil paramilitary group member who threatened his wife. The applicant claims he was required to provide [products] in order to protect himself and his family. The applicant claims that when he ceased providing the [products] he and his wife were again threatened. The applicant claims that he went into hiding and his wife moved with their children to live elsewhere. The applicant claims to fear harm from paramilitary groups and the Sri Lankan authorities upon his return to Sri Lanka. The applicant also claims that due to his [relative]’s involvement with the LTTE that he will be imputed with a pro-LTTE political opinion and will suffer harm for this reason upon his return to Sri Lanka.
The delegate of the Minister for Immigration refused to grant the Protection visa [in] August 2013. The delegate found that “essentially, the applicant knew virtually nothing about the TNA”. The delegate found that the applicant’s claims to be an “ardent supporter” of the TNA in Sri Lanka to have been fabricated. The delegate also found that the applicant’s claims to have come to the attention of the authorities as a result of his TNA association were unconvincing. The delegate concluded that the applicant had no links with the LTTE in Sri Lanka; was never a supporter of the LTTE; and he and his wife were of no interest to the Criminal Investigation Division (CID) or the Tamil paramilitary group (Karuna group). The delegate considered the situation for returnees, 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…

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 3350
Decision Date: 23 September 2015

CaseChat Overview and Summary

The case involves an application for a Protection visa by a non-citizen from Sri Lanka, who claims to have a well-founded fear of persecution if returned to his home country. The application was heard by the Refugee Review Tribunal, an administrative tribunal in Australia that reviews decisions made by the Department of Immigration and Border Protection regarding refugee status and visas. The Tribunal was tasked with determining whether the applicant met the criteria for a Protection visa under the Migration Act 1958, specifically whether he had a well-founded fear of being persecuted for reasons defined in the Refugees Convention. If the Tribunal found that the applicant did not meet the criteria for a Protection visa, it was also required to consider whether there were substantial grounds for believing that the applicant would suffer significant harm if returned to Sri Lanka.

The central legal issue before the Tribunal was whether the applicant's political activities and affiliation with the Tamil National Alliance (TNA) in Sri Lanka constituted a well-founded fear of persecution for Convention reasons. The applicant argued that his support for the TNA, which the Sri Lankan authorities viewed as supporting the Liberation Tigers of Tamil Eelam (LTTE), exposed him to persecution. The Tribunal had to assess the credibility of the applicant's claims and the evidence provided to support them, including the threats he received from the Sri Lankan authorities and the financial burden he faced to avoid persecution. Additionally, the Tribunal needed to consider whether the applicant would face significant harm if returned to Sri Lanka, as required by the Migration Act.

The Tribunal examined the applicant's evidence and found that while he had been an active supporter of the TNA, there was insufficient evidence to conclude that he had a well-founded fear of persecution for Convention reasons. The Tribunal noted that the applicant's political activities were not unique and that many individuals in Sri Lanka supported the TNA without facing persecution. Furthermore, the financial burden mentioned by the applicant was not deemed to be a form of persecution under the Refugees Convention. Consequently, the Tribunal concluded that the applicant did not meet the criteria for a Protection visa under the Act. The Tribunal also found that there were no substantial grounds for believing that the applicant would suffer significant harm if returned to Sri Lanka.

The Tribunal affirmed the decision not to grant the applicant a Protection visa, stating that the applicant did not satisfy the criteria for a Protection visa under the Migration Act. The Tribunal's decision was based on the lack of evidence to support the applicant's claims of a well-founded fear of persecution for Convention reasons and the absence of substantial grounds for believing he would suffer significant harm if returned to Sri Lanka.

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 persecuted 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 EVIDENCEApplication to the Department The applicant indicated on the application form that he speaks, reads and writes Tamil. He indicated that he was educated until Year [grade] and he completed his schooling in [year]. The applicant stated that he was a [occupation] in Batticaloa District prior to his departure from Sri Lanka. The applicant is married with [children] who are all attending school. In a statutory declaration provided with the application, the applicant stated that since 2004 he has been an “ardent” supporter of the Tamil National Alliance (TNA) and it continues to be perceived by the Sri Lankan authorities as a party that supports the LTTE. This is due to the fact that members of this political party have in the past and the present openly voiced their opinions and attempted to seek justice for Tamils. As a minority Tamil in a country where the majority has been persecuted the minority Tamils for several years, the applicant believes that the LTTE and the TNA were the only representatives of Tamils. Since the LTTE was defeated, the Sri Lankan government has been focusing on suppressing the activities of the TNA through various means such as paramilitary groups. Since 2004, the applicant would regularly attend TNA meetings, and help out when required, especially prior to various elections, including provincial council elections and municipal elections. The applicant states that [in] April 2009 at approximately 5pm or 6pm, he went to visit his mother who lives approximately 2 kilometres away. Whilst he was at his mother’s house he received a call from his wife at approximately 8pm. His wife informed him that four armed men who spoke Tamil and Sinhala and wearing balaclavas had come to his home in search of him. They realised he was not at home and told his wife that he needed to come to the CID branch inside the army camp which was situated close to the [town’s] [factory]. The men threatened to kill the applicant if he did not report the following day. The applicant’s wife knew an influential member of the Karuna group (also known as TMVP) called [Mr A]. His wife used to work as a [occupation] in a [charity organisation] funded project in an LTTE controlled area and often travelled there. [Mr A] was a member of the LTTE at the time prior to defecting to the Tamil paramilitary group, Karuna. His wife spoke to [Mr A] and asked if he could find out why they wanted her husband. [Mr A] informed his wife that the applicant was of interest to the authorities due to his involvement with the TNA. He added that all TNA supporters have been branded as LTTE supporters. He asked them to pay money or the equivalent of [product] on a regular basis in order to avoid being harmed by members of the Sri Lankan authorities. The applicant had no option but to give [Mr A] approximately [number] of [products] every [time] because he feared that the Sri Lankan authorities would abduct him.

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 (Class XA) 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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