1400628 (Refugee) - [2015] AATA 3801

1400628 (Refugee) [2015] AATA 3801 (24 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1400628
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Mr S Norman
DATE:24 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 November 2015 at 9:55am

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[1] and the delegate refused to grant the visa [in] January 2014. On 13 January 2014,[2] the applicant sought merits review of that decision by the (now) Administrative Appeals Tribunal.
[1] DIBP – from folio 95.
[2] Tribunal - from folio 30.
The applicant appeared before the Tribunal on 23 November 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.
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.
Section 499 Ministerial Direction
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 fears harm in Sri Lanka for reasons that include his ethnicity (Tamil) and a business dispute. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Irregular Maritime Arrival Entry Interview:
The applicant departed Sri Lanka unlawfully [in] July 2012;[3] and he arrived in Australia as an unauthorised maritime arrival[4] [later…

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 1400628 (Refugee)

Details

AGLC: 1400628 (Refugee) [2015] AATA 3801
Case: [2015] AATA 3801
Decision Date: 24 November 2015

CaseChat Overview and Summary

In the case of 1400628, the applicant, a Sri Lankan national of Tamil ethnicity, sought protection in Australia after arriving as an unauthorised maritime arrival in July 2012. The dispute centred on whether the applicant had a well-founded fear of persecution or harm if returned to Sri Lanka due to his ethnicity and a business dispute. The matter was before the Tribunal, which was required to consider relevant policy guidelines and country information assessments in its determination.

The primary legal issues were whether the applicant had a credible fear of persecution or harm due to his ethnicity and the business dispute upon his return to Sri Lanka. This involved assessing the applicant's credibility, the country information regarding the treatment of Tamils in Sri Lanka, and the specific circumstances of the applicant's past detention and departure from Sri Lanka. The Tribunal needed to determine if these factors established a real chance of persecution or harm that would qualify the applicant for protection under Australian law.

The Tribunal concluded that the applicant's claims did not establish a real chance of harm in Sri Lanka for the reasons asserted. The Tribunal accepted that the applicant had been detained by the Sri Lankan authorities in 1983 but found that this incident alone did not substantiate a fear of persecution. The applicant's subsequent departure to another country and employment there until 1991 indicated that he did not face persecution or harm during that period. The Tribunal also noted that the applicant had not claimed any harm due to his Hindu faith and had not provided sufficient evidence to support a fear of harm related to his business dispute. Based on these findings and the country information, the Tribunal affirmed the decision to deny the applicant's protection visa.

The final orders affirmed the decision to refuse the applicant's protection visa, finding that the applicant did not have a well-founded fear of persecution or 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

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 fears harm in Sri Lanka for reasons that include his ethnicity (Tamil) and a business dispute. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Irregular Maritime Arrival Entry Interview: The applicant departed Sri Lanka unlawfully [in] July 2012;[3] and he arrived in Australia as an unauthorised maritime arrival[4] [later in] July 2012.[5] [In] September 2012, the applicant attended an irregular maritime arrival entry interview.[6] The applicant is recorded as claiming (materially) that which is set out below. The first departure from Sri Lanka in 1984: [3] DIBP – folio 27. [4] DIBP – folio 72. [5] DIBP – folio 66. [6] DIBP – from folio 115. In his Protection visa application, the applicant said he was born in [his home town], Kandy Sri Lanka in September [year]. He said he was a Tamil and a Hindu and is married with [children] (his family still reside in Sri Lanka). When asked at hearing, the applicant said did not fear harm in Sri Lanka for reason of his Hindu faith. Based on his concession, and the country information considered herein, and the fact that none of his family in Sri Lanka were claimed to have experienced any harm for this reason, I do not accept the applicant has a real chance of any harm for this reason, and I have not considered this further. The applicant then explained that in 1983, he was taken into protective custody by the Sri Lanka Navy/Army (hereinafter the SLA). He said he was detained for approximately 15 days on that occasion prior to being released. At the hearing, the applicant said he was around [age] years old at the time of the above incident and it occurred “when the conflict happened”. At the end of approximately 2 weeks, the applicant was released and he then returned to his own home. The applicant did not say he was mistreated, and he did not say anything else occurred as a result of this incident. After discussing it at hearing, the Tribunal accepts the applicant was detained by the SLA in or around 1983, kept for 2 weeks, and then released. However, as the applicant was fearful after this incident, he first “fled” Sri Lanka 1984. That was because he feared persecution due to the problems between the government and the Tamils. He said this was known as the “[event name]”. He therefore obtained a work visa and “travelled through” [another country] but then principally lived and worked (for approximately the following [number of] years) in [Country 1]. After discussing it at hearing, the Tribunal accepts the applicant lived and worked in [Country 1] between 1984 and 1991. The applicant’s return to Sri Lanka in 1992:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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