1416756 (Refugee) - [2016] AATA 3877

1416756 (Refugee) [2016] AATA 3877 (12 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416756
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Belinda Mericourt
DATE:12 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 12 May 2016 at 3:52pm

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] July 2013 and the delegate refused to grant the visa [in] September 2014.
The applicant appeared before the Tribunal on 17 February 2016 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.
BACKGROUND
The applicant completed the following information on his application form. The applicant was born in [year] in [Town 1], Batticaloa District, Eastern Province, Sri Lanka. He is Tamil, speaks, reads and writes Tamil and speaks [other languages]. His religion is Hinduism. He is married and has a [child] born in [year] and a [child] born in [year]. His parents are deceased. At the time of application his wife, children and [his siblings] were residing in Sri Lanka. On his application form he stated he completed year [grade] at school and worked in Sri Lanka as [Occupation 1] until 2006 and during the periods after that when he lived in Sri Lanka. From 2006 to 2012 the applicant worked in [Country 1] as [Occupation 2] and [another occupation]. During this period he returned to Sri Lanka on three occasions in 2007/08, 2010 and 2012.
[In] April 2013 the applicant arrived on the Australian mainland without a passport or a valid visa on a [boat]. He was granted a bridging visa E [in] June 2013 and lodged an application for a protection visa [in] July 2013. [In] August 2014 he was interviewed by delegate of the Department. This visa application was refused [in] September 2014.
CRITERIA FOR A PROTECTION VISA
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…

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: [2016] AATA 3877
Decision Date: 12 May 2016

CaseChat Overview and Summary

This matter concerns an application for judicial review of a decision made by the Refugee Review Tribunal. The applicant, a Tamil man from Sri Lanka, sought a protection visa on the basis of a well-founded fear of persecution. The Tribunal had affirmed the delegate's decision to refuse the visa application.

The primary legal issue before the court was whether the Tribunal had erred in law in its assessment of the applicant's claims for protection. Specifically, the court was required to consider whether the Tribunal had properly applied the evidentiary burden on the applicant to establish his claims, and whether it had adequately considered the evidence presented in light of the relevant provisions of the *Migration Act 1958* (Cth) and the *Refugee Convention*.

The court affirmed the principle that the onus rests on the applicant to specify all particulars of their claim and provide sufficient evidence to establish it, as stipulated by section 5AAA of the *Migration Act 1958* (Cth). The Tribunal is not obliged to make or assist in establishing the applicant's case. The court noted that the mere assertion of fear does not establish its genuineness or that it is well-founded, nor does it automatically establish a real risk of significant harm. The Tribunal must be satisfied that all statutory elements are met based on the evidence presented by the applicant. The court reviewed the applicant's statements regarding alleged past persecution by the Sri Lankan Army and the LTTE, as well as incidents involving "Karuna people" and the CID, and considered whether the Tribunal had given these claims due consideration.

The court found no error of law in the Tribunal's decision and therefore dismissed the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

The applicant appeared before the Tribunal on 17 February 2016 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.BACKGROUND The applicant completed the following information on his application form. The applicant was born in [year] in [Town 1], Batticaloa District, Eastern Province, Sri Lanka. He is Tamil, speaks, reads and writes Tamil and speaks [other languages]. His religion is Hinduism. He is married and has a [child] born in [year] and a [child] born in [year]. His parents are deceased. At the time of application his wife, children and [his siblings] were residing in Sri Lanka. On his application form he stated he completed year [grade] at school and worked in Sri Lanka as [Occupation 1] until 2006 and during the periods after that when he lived in Sri Lanka. From 2006 to 2012 the applicant worked in [Country 1] as [Occupation 2] and [another occupation]. During this period he returned to Sri Lanka on three occasions in 2007/08, 2010 and 2012. [In] April 2013 the applicant arrived on the Australian mainland without a passport or a valid visa on a [boat]. He was granted a bridging visa E [in] June 2013 and lodged an application for a protection visa [in] July 2013. [In] August 2014 he was interviewed by delegate of the Department. This visa application was refused [in] September 2014.CRITERIA FOR A PROTECTION VISA 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 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 return to it.

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 Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.Requirement that the decision-maker be ‘satisfied’ The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.) The Tribunal has before it the Department’s file relating to the applicant, which includes the written record of the applicant’s IMA Induction interview dated [May] 2013, the applicant’s written application for a protection visa including a statutory declaration dated 3 July 2013, the audio recording of his interview by the delegate [in] August 2014 and a copy of the delegate’s decision record. The Tribunal also has before it a copy of the Department’s decision dated [September] 2014. The Tribunal has also referred to relevant country information as cited in this decision.Claims made by the applicant during his IMA induction interview with the Department [in] May 2013

Decision

Reasons for decision

Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.Requirement that the decision-maker be ‘satisfied’ The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.) The Tribunal has before it the Department’s file relating to the applicant, which includes the written record of the applicant’s IMA Induction interview dated [May] 2013, the applicant’s written application for a protection visa including a statutory declaration dated 3 July 2013, the audio recording of his interview by the delegate [in] August 2014 and a copy of the delegate’s decision record. The Tribunal also has before it a copy of the Department’s decision dated [September] 2014. The Tribunal has also referred to relevant country information as cited in this decision.Claims made by the applicant during his IMA induction interview with the Department [in] May 2013 The applicant stated that he departed Sri Lanka because in 2009 the Sri Lankan Army took him and forced him to confess that he was a member of the LTTE. They suspected he was a member of the LTTE because when he was very young the LTTE forced him to join them after ’torturing’ him in 2001. His [relative] arranged for him to be released in 2001. He was only `[age] or [age] years at the time. He did not work for the LTTE, but once he was asked to take [items] for them in 2005. He was threatened “with his life” so he did this just for one day in [location]. In 2007, Karuna people buried a bomb in front of the gate of his house in Batticaloa and he was blamed for putting the bomb there. Karuna people came at night and took the bomb. They beat him and then the CID took him in for investigation. Because of this incident he went to [Country 1] in 2008 to work. When he returned to Sri Lanka he had problems with the CID who took him and forced him to accept that he is LTTE. If he did not accept he had to pay money but he did not have any money and did not pay. He went home and fled to [Town 2] and stayed at his [sibling’s] house for one and a half months. He then took his wife and children to Colombo. He departed Sri Lanka from Colombo in February 2013.Claims made by the applicant in his written statement to the Department

Ratio Decidendi

Legal Principle Established

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