1512240 (Refugee)

Case [2018] AATA 378

1512240 (Refugee) [2018] AATA 378 (2 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512240

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Dr Colin Huntly

DATE:2 February 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 February 2018 at 3:41pm

CATCHWORDS
Protection visa – Sri Lanka – Race – Tamil – Particular social group – Young Tamil Male – Mixed marriage – Imputed political opinion – Suspected involvement with Liberation Tigers of Tamil Eelam (LTTE) – Resistance to Karuna faction – Forced recruitment – Returnee status – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (1997) FCA 1198
Iyer v MIMA (2000) FCA 52 (4 February 2000)
Iyer v MIMA (2000) FCA 1788 (15 December 2000)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMIA (2003) FCAFC 65 (11 April 2003)
SDAQ v MIMA (2003) 129 FCR 137
Selliah v MIMIA (1999) FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (1998) FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs (1999) FCA 76

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

  1. 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).

  2. The applicant who claims to be a citizen of Sri Lanka applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] August 2015.

  3. The applicant was invited to attend a hearing with the Tribunal on 5 September 2017 at 9:30 am.  When the applicant failed to attend the scheduled hearing, the tribunal made an interim decision to dismiss the applicant’s application for review.  The applicant was notified of this interim decision, and was invited to apply for reinstatement within 14 days.

  4. The applicant applied for reinstatement of his application for review by email on 25 September 2017.  The applicant indicated that, although he had…

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AGLC
1512240 (Refugee) [2018] AATA 378
Case
[2018] AATA 378
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a protection visa. The applicant, a Sri Lankan national of Tamil ethnicity, claimed to fear persecution upon return to Sri Lanka due to his imputed political opinion, his membership in the particular social group of "young Tamil males," and his potential association with the Liberation Tigers of Tamil Eelam (LTTE). The dispute centred on whether these grounds established a well-founded fear of persecution, thereby entitling him to protection under Australian law. The decision was made by the Tribunal.

The Tribunal was required to determine whether the applicant was owed protection obligations under the refugee criteria or for complementary reasons. Specifically, it needed to assess the applicant's claims of fear of harm from members of the Karuna faction, and potentially from Vinayagamoorthy Muralitharan (Karuna), on account of his actual or imputed political opinion, his suspected LTTE profile, or his association with an activist. The Tribunal also considered implied claims relating to his Tamil ethnicity, interfaith marriage, and his status as a returnee to Sri Lanka.

The Tribunal considered the applicant's stated position that his claims regarding race, religion, nationality, membership of a particular social group, and political opinion were largely indistinguishable. It noted the applicant's arrival in Australia in 2011 and his subsequent status as a citizen of Sri Lanka, confirming Sri Lanka as the country of reference. The Tribunal found that the applicant did not have a right to enter and reside in a third country, thus not being excluded from protection under section 36(3) of the Act. However, the Tribunal concluded that the decision under review should be affirmed, indicating that the applicant's claims did not meet the threshold for protection, likely due to credibility issues or a failure to establish a well-founded fear of persecution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The law relevant to this application for review is discussed at Appendix A to this Decision.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is owed protection obligations either under the refugee criteria or for complimentary reasons. The tribunal notes that the delegate in his record of decision identified the applicant’s “(imputed) political opinion, his Tamil ethnicity and Hindu religion together with his membership of a particular social group, (namely ‘young Tamil male’), and fear of ‘harm, being abused or killed, by members of the Karuna faction on account of his (imputed) or actual political opinion of being anti-Karuna or pro-LTTE. The Tribunal notes that the applicant’s original application for protection includes a statement, signed and dated by the applicant [in] September 2013, which includes the following sentence: “I wish to emphasise that as far as the submissions in respect of race, religion, nationality, membership of a particular social group or political opinion are concerned I submit that for the most part they are indistinguishable from each other.” Notwithstanding the above statement, the Tribunal notes that the detailed claims provided by the applicant in his application for protection identify two grounds for fearing persecution if the applicant were returned to Sri Lanka now, or in the reasonably foreseeable future. These are fears of persecution because of the applicant’s actual or implied LTTE profile; Association with activist [Mr A]; and/or suspected LTTE Cadre membership, and fear of harm from members of the Karuna faction and Vinayagamoorthy Muralitharan in particular (Karuna). In addition to these grounds for protection, the Tribunal has also considered the implied claims of the applicant relating to his Tamil ethnicity, interfaith marriage and his potential status as a returnee. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of reference According to the applicant’s movement record, he arrived in Australia using a Sri Lankan passport. The applicant first entered Australia [in] October 2011, travelling on a [Student] visa (granted [in] October 2011, ceased [in] August 2013). The Tribunal has reviewed the applicant’s Sri Lankan passport together with the evidence relied upon by the Department contained within the departmental file relating to the applicant’s application for protection. On the basis of the above evidence, the Tribunal finds that the applicant is a man born [date] and is a citizen of the Sri Lanka. The Tribunal therefore finds that the country of reference and the receiving country, is Sri Lanka for the purposes of s.36(2)(aa) of the Act. Having regard to all the evidence, the Tribunal finds the applicant does not have a right to enter and reside in a third country. The applicant is therefore not excluded from Australian protection by the operation of s.36(3) of the Act.Applicant credibility issues

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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