1404998 (Refugee) - [2015] AATA 3987

1404998 (Refugee) [2015] AATA 3987 (20 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1404998
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Susan Pinto
DATE:20 October 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 20 October 2015 at 11:52am

CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – Particular social group – illegal maritime arrival – victim of assault – family of United National Party member – fear of harm by villagers – personal vendetta – involved with personal dispute – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZTKF v MIBP [2014] FCCA 282
SZSPE v MIBP [2013] FCCA 1989
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]. He is of Singhalese ethnicity and is from Negombo in the Western province of Sri Lanka. He arrived in Australia as an undocumented Illegal Maritime Arrival on 11 August 2012. He was transferred to [a] Detention Centre, but later released into the community on a Bridging visa.
The applicant applied to the Department of Immigration for the Protection visa on 20 March 2013. The applicant claimed that he feared harm in Sri Lanka due to an assault on his brother in law which may have been related to his brother in law’s involvement with a political party, the United National Party (UNP). The applicant also claimed that his wife suffered a stillbirth following an assault in 2004. At the Tribunal hearing, the applicant also claimed that he was associated with an assault against a villager which occurred in [City 1, Australia] several months ago, and the villagers and family of the victim will harm him upon his return to Sri Lanka.
The delegate of the Minister for Immigration refused to grant the visa on 10 March 2014. The delegate did not accept the applicant’s claims and found that he would not be harmed upon his return to Sri Lanka.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 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…

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 3987
Decision Date: 20 October 2015

CaseChat Overview and Summary

The case involves a Sri Lankan national who arrived in Australia illegally and 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 family's political affiliations and an incident where he was assaulted for making a complaint. The matter was heard by the Tribunal, which had to decide whether the applicant qualified for a protection visa under the relevant provisions of the Migration Act 1958.

The primary legal issue was whether the applicant had a well-founded fear of persecution for reasons specified in the Refugees Convention, such as membership in a particular social group or political opinion. The Tribunal also had to consider if there were substantial grounds to believe that the applicant would suffer significant harm if returned to Sri Lanka, even if he did not meet the Convention criteria. The evidence presented included the applicant's personal history, the political context in Sri Lanka, and the specific incident of assault.

The Tribunal found that the applicant did not meet the criteria for a protection visa. It concluded that the applicant's fear of persecution was not well-founded, as it was based on personal disputes and incidents rather than a broader systemic issue. The Tribunal also determined that there were no substantial grounds to believe that the applicant would suffer significant harm if returned to Sri Lanka. The evidence did not support a claim of persecution on the grounds of political opinion or membership in a particular social group.

The Tribunal affirmed the decision not to grant the applicant a Protection visa, concluding that the applicant did not satisfy the criteria under the Migration Act. The decision was based on the lack of sufficient evidence to establish a well-founded fear of persecution or significant harm upon return 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 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 EVIDENCE The applicant attended an Entry Interview on 10 October 2012. The applicant stated that he left Sri Lanka because someone had assaulted his brother in law in February 2009 and he also made a complaint about a boat yard in front of his home. The applicant made the complaint in 2004 and some people came and beat him. His wife who was pregnant with their son fell to the floor and he later died at birth. Application to the Department When lodging the application to the Department, the applicant stated that he was born in Negombo in the Western province of Sri Lanka. He indicated that he speaks, reads and writes Singhalese and he speaks and reads Tamil and speaks [the language of Country 3]. The applicant stated that he was married [in] September 2003. He stated that he had [a number of] years of education in Sri Lanka. The applicant indicated that his wife and [children] reside in Sri Lanka. His children were born in [years]. The applicant also had a son, born in 2004, who is deceased. The applicant’s parents and [sisters] reside in Sri Lanka. The applicant stated on the application form that he previously applied for protection in [Country 1] in 2001 and in [Country 2] in June 2012. He states that he was given a Temporary Protection visa for [Country 1], but it is no longer valid. The applicant stated that he travelled to Australia with his brother in [law]. He also stated that between April 2001 and July 2003 he lived in [Country 1]; between October 2006 and October 2009 he lived in [Country 3]; and between December 2009 and April 2011 he lived in [Country 3]. However, he stated elsewhere on the application form that he lived in [Country 3] until May 2012. This issue was clarified during the Department interview (see below). In a Statement of Claims, dated 13 March 2013, the applicant stated that he is Catholic and of Singhalese ethnicity. The applicant states that he fears returning to Sri Lanka. He first left Sri Lanka in 2001. He went to seek employment in [Country 1] as he had just married and he was struggling to support himself and his wife in Sri Lanka. The applicant went to [Country 1] by boat and was taken to a detention centre. He stayed there for three days and was subsequently given a piece of paper saying he was a refugee and he was allowed to stay for six months. He was then taken to a local train station and sent on his way. He was required to report to the local police station after six months to renew his permit. He found work in [a location] but in 2003 he was told he permit could not be renewed, but he could follow up in [the city] if he wanted to re-apply. He did not go to [the city], but approached his employer instead and told him he wanted to stay permanently. His employer agreed to sponsor him, but he said he had to return to Sri Lanka first. The applicant obtained a passport and returned to Sri Lanka. He was told that he could return to [Country 1] after a couple of months, but later realised that this was not true.

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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