1513698 (Refugee) - [2017] AATA 1035

1513698 (Refugee) [2017] AATA 1035 (25 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513698
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Magda Wysocka
DATE:25 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 May 2017 at 5:38pm
CATCHWORDS
Refugee – Protection visa – Sri Lanka – Complementary protection – Particular social group – Sinhalese Buddhist – LTTE supporter or sympathiser – Imputed political opinion – UNP supporter – Arrest, abduction and interrogation – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 48A, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZGIZ v MIAC (2013) 212 FCR 235
AMA15 v MIBP [2015] FCA 1424
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] February 2014 and the delegate refused to grant the visa [in] October 2015. A copy of the delegate’s decision record has been provided to the tribunal by the applicant.
The applicant appeared before the Tribunal on 4 April 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
The applicant has previously applied for a protection visa [in] December 2009, which was refused by the department [in] March 2010. The Refugee Review Tribunal (as it was then known, or RRT) affirmed the decision on 8 July 2010.
The current application has been made following the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235 on 3 July 2013. The Full Federal Court in SZGIZ held that the operation of the statutory bar in s.48A (preventing a non-citizen making a further protection visa application while in the migration zone in circumstances where a previous protection visa application has been refused), as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the tribunal has considered the…

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

AGLC: 1513698 (Refugee) [2017] AATA 1035
Case: [2017] AATA 1035
Decision Date: 25 May 2017

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Sri Lankan national. The applicant, a Sinhalese Buddhist, claimed to fear persecution upon return to Sri Lanka due to suspicions by Sri Lankan authorities of his support for the LTTE, stemming from past associations. He alleged he had been arrested in 1999 and 2007, and abducted in 2009, and feared further targeting by those who abducted him. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant was owed complementary protection obligations by Australia.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically concerning the assessment of his claims for complementary protection. This involved evaluating the credibility of his account of arrest, abduction, and interrogation by Sri Lankan authorities, and whether these experiences, or imputed political opinions, would place him at risk of harm amounting to persecution or significant harm if returned to Sri Lanka. The Tribunal was also required to consider relevant policy guidelines and country information.

The Tribunal affirmed the delegate's decision not to grant the protection visa, concluding that the applicant's claims were not credible. It found no evidence to support the applicant's assertions of arrest, abduction, or interrogation by Sri Lankan authorities in relation to LTTE support. Consequently, the Tribunal determined that the applicant did not satisfy the criteria for a protection visa, including the requirements for complementary protection. The Tribunal's decision was based on an assessment of the evidence presented and the applicant's failure to establish a well-founded fear of persecution or significant harm.

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 whether the applicant is owed complementary protection obligations by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant has provided a copy of his current Sri Lankan passport biodata page to the department, on the basis of which the tribunal accepts that he is a citizen of Sri Lanka. It has therefore assessed his claims against that country.Claims The applicant is a Sinhalese Buddhist born in [year] in [Colombo], Sri Lanka. He arrived in Australia [in] November 2009 on a [temporary] visa and has remained in Australia since then. The applicant made brief claims in his most recent protection visa application form but his protection claims remain materially the same as in his original 2009 protection visa application, according to a 13 March 2015 submission from his representative to the department (which summarises those claims).[1] The tribunal has had regard to the evidence and submissions provided by the applicant and his representative to the department for the purpose of the current protection assessment. It has also had regard to evidence provided by the applicant in his original protection visa application, consisting of his written statement of claims of [December] 2009 (referred to as his ‘2009 statement’ and summarised in the delegate’s decision record regarding the current protection visa application) and various news articles, as well as the applicant’s evidence to the RRT in 2010. [1] The tribunal notes that although the applicant’s current protection visa application form refers to a further statement to follow, no further statement was provided. In summary, the applicant claims that he was suspected by Sri Lankan authorities of LTTE support, including transferring money from overseas for the LTTE, because of his association with Tamil friends whom he worked with at [his employer] from 1996 until approximately 2000. He claims that he was arrested in 1999 and 2007 and abducted in 2009 as a result of those suspicions. He further fears that he will be targeted upon return by the people who abducted him in 2009 in order to prevent him from telling anyone that they demanded money from him in exchange for his release. The departmental delegate did not find the applicant’s claims to be credible and did not accept that he was ever arrested or accused of supporting the LTTE. Credibility concerns

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.Magda WysockaMember

Ratio Decidendi

Legal Principle Established

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