1315946 (Refugee) - [2015] AATA 3139

1315946 (Refugee) [2015] AATA 3139 (6 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1315946
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Suzanne Carlton
DATE:6 July 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 06 July 2015 at 2:00pm

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

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).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] September 2013.
The applicant appeared before the Tribunal on 19 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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…

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 3139
Decision Date: 6 July 2015

CaseChat Overview and Summary

The matter before the court involved a Sri Lankan citizen of Tamil descent, who sought to overturn a decision of the delegate of the Minister for Immigration and Border Protection refusing to grant him a protection visa. The applicant had provided a detailed account of his experiences in Sri Lanka, alleging that he had been persecuted due to his father's opposition to a local minister's attempt to acquire village land in 2010, leading to repeated threats and assaults by the minister's associates. The applicant also expressed concerns about the consequences of returning to Sri Lanka as a failed asylum seeker. The primary legal issue for the court was whether the Tribunal's decision to affirm the delegate's refusal to grant the applicant a protection visa was lawful and reasonable, considering the evidence and applicable legal standards.

The court examined the evidence provided by the applicant, including his account of the incidents in Sri Lanka and the documentary evidence he had submitted. It noted that the Tribunal had considered the policy guidelines and country information assessments relevant to the applicant's case. The court found that the Tribunal had appropriately assessed the credibility of the applicant's evidence and had reached a conclusion that was supported by the evidence. It held that the Tribunal had correctly applied the relevant legal standards and that its decision was not flawed by any errors of law or unreasonableness. The court emphasised the importance of the Tribunal's role in determining protection visa applications and the need for its decisions to be based on a thorough and objective assessment of the evidence.

In light of the above, the court upheld the Tribunal's decision to affirm the delegate's refusal to grant the applicant a protection visa. The court found that the Tribunal had properly considered the applicant's claims and evidence, and had reached a lawful and reasonable decision. It noted that the applicant had the right to seek review of the decision by the Administrative Appeals Tribunal and, ultimately, by the Federal Court. The court did not make any orders in relation to the applicant's appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the applicant, a Sri Lankan citizen who is an ethnic Tamil, claims to have suffered persecution because in 2010 his father, then the Grama Niladhari for the village, thwarted the efforts of [Mr A], a local minister, to buy and redevelop the village’s markets. As a consequence of his father’s actions, he was repeatedly threatened and assaulted between 2010 and 2012 by [Mr A]’s bodyguards. He fears serious harm at their hands if he returns. He further fears the consequences of his illegal departure as a failed asylum seeker who departed illegally. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Applicant’s protection visa application and the delegate’s decision In his application for a protection visa the applicant provided the following details:·He was born in [Village 1, Sri Lanka].·He is Tamil and Hindu.·He studied up to [education level].·He speaks Tamil.·He has never been married.·In Sri Lanka, he did not worked. Since being in Australia, he has worked in the lamb processing [factory] and as a book [packer]. He provided to the Department:·A copy of his Sri Lankan National Identity Card;·A copy of his Sri Lankan birth certificate. In his bio-data interview sheet, completed [in] July 2012 in his own hand and in his own language but prior to legal assistance, he stated that the reason he sought Australia’s protection was due to “economic problems back home. Unable to have a decent life” (as translated). During his entry interview, conducted with the assistance of an interpreter, but without legal assistance, [in] September 2012 he gave a more detailed account of why he left the country:Why did you leave Sri Lanka?There’s no protection for me. No guarantee for my life, lots of problems. My father elected as village president and we were conducting festivals in temple. From the temple, we ran a market, there was a Sinhalese minister from the next village, [Mr A], he come to buy the market so he can build a building. My father opposed that. He come and the issue becomes vague and become riots surrounding all the Sinhalese villages. When my father have a cooperation with them, me and my siblings were studying at school. That incident on that dates over, if I go to to wish and is, I have to go to [Town 2]. I have to pass that village. After this incident, I get into the bus, lots of Sinhalese, Minister has influence, they come to trouble me. Since then, the Sinhalese people coming to the bus, hit me, pull my shirt. After that, instead of taking one bus, I took three buses to avoid. 56 months, I was travelling like this that someone they got to know. After that, I report to my father, that unknown people are hitting me and pulling my shirt. That time, my father also, never go outside will stop my father told, it’s going to be a problem for you, he stop me go to the tuitions. I like to study stop my father, [name] he is my friend, he is my guide, for him I study very well. I passed the ordinary level, I studied A-level. If I got good results, even though I stopped tuitions, I play [Sport 3], my father is a [sports] player, I had a vote from the [name] Company. This award was given in Colombo, Bmich. I got the award, and I didn’t like to stay in city, when I travelling to village, that minister I told you before, they stop the bus stop they asked people to get down from down, half the people got down, I was wearing school uniform. After that, the bus go straight but before a village I got down from the bus, those people’s on me. They came in for bikes, they surrounded me. They were under influence of drugs, I started running. You can see the mark on my face (client gestures to [face]). The Sinhalese people start chasing me. I know the area, the jungle. Somehow I reached home, I cried to my mother. No one from my village got any award, my mother was proud of that, she treated me from my wound. After that, I never go out, just to school. Later one occasion, after school, I saw a van. The people who chased me were waiting outside, one boy warned me be careful. I went back, jumped the fence, go through the jungle and reach home. After week, same thing, like 5 times this happened to me. Few times, we report to police and they said it’s not like that. After that, I didn’t go anywhere outside and my father also never go out will stop next were village, a temple we used to go to, after this we couldn’t go there.When did these things happen?2010.Who were these people?Sinhalese, after this minister incident, this trouble started, not sure if there are connected to minister.Why you?Because I used to help my father, I was involved.Are there are any other reasons you left Sri Lanka?No.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Applicant’s protection visa application and the delegate’s decision In his application for a protection visa the applicant provided the following details:·He was born in [Village 1, Sri Lanka].·He is Tamil and Hindu.·He studied up to [education level].·He speaks Tamil.·He has never been married.·In Sri Lanka, he did not worked. Since being in Australia, he has worked in the lamb processing [factory] and as a book [packer]. He provided to the Department:·A copy of his Sri Lankan National Identity Card;·A copy of his Sri Lankan birth certificate. In his bio-data interview sheet, completed [in] July 2012 in his own hand and in his own language but prior to legal assistance, he stated that the reason he sought Australia’s protection was due to “economic problems back home. Unable to have a decent life” (as translated). During his entry interview, conducted with the assistance of an interpreter, but without legal assistance, [in] September 2012 he gave a more detailed account of why he left the country:Why did you leave Sri Lanka?There’s no protection for me. No guarantee for my life, lots of problems. My father elected as village president and we were conducting festivals in temple. From the temple, we ran a market, there was a Sinhalese minister from the next village, [Mr A], he come to buy the market so he can build a building. My father opposed that. He come and the issue becomes vague and become riots surrounding all the Sinhalese villages. When my father have a cooperation with them, me and my siblings were studying at school. That incident on that dates over, if I go to to wish and is, I have to go to [Town 2]. I have to pass that village. After this incident, I get into the bus, lots of Sinhalese, Minister has influence, they come to trouble me. Since then, the Sinhalese people coming to the bus, hit me, pull my shirt. After that, instead of taking one bus, I took three buses to avoid. 56 months, I was travelling like this that someone they got to know. After that, I report to my father, that unknown people are hitting me and pulling my shirt. That time, my father also, never go outside will stop my father told, it’s going to be a problem for you, he stop me go to the tuitions. I like to study stop my father, [name] he is my friend, he is my guide, for him I study very well. I passed the ordinary level, I studied A-level. If I got good results, even though I stopped tuitions, I play [Sport 3], my father is a [sports] player, I had a vote from the [name] Company. This award was given in Colombo, Bmich. I got the award, and I didn’t like to stay in city, when I travelling to village, that minister I told you before, they stop the bus stop they asked people to get down from down, half the people got down, I was wearing school uniform. After that, the bus go straight but before a village I got down from the bus, those people’s on me. They came in for bikes, they surrounded me. They were under influence of drugs, I started running. You can see the mark on my face (client gestures to [face]). The Sinhalese people start chasing me. I know the area, the jungle. Somehow I reached home, I cried to my mother. No one from my village got any award, my mother was proud of that, she treated me from my wound. After that, I never go out, just to school. Later one occasion, after school, I saw a van. The people who chased me were waiting outside, one boy warned me be careful. I went back, jumped the fence, go through the jungle and reach home. After week, same thing, like 5 times this happened to me. Few times, we report to police and they said it’s not like that. After that, I didn’t go anywhere outside and my father also never go out will stop next were village, a temple we used to go to, after this we couldn’t go there.When did these things happen?2010.Who were these people?Sinhalese, after this minister incident, this trouble started, not sure if there are connected to minister.Why you?Because I used to help my father, I was involved.Are there are any other reasons you left Sri Lanka?No.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.