1514996 (Refugee) - [2016] AATA 3882

1514996 (Refugee) [2016] AATA 3882 (26 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514996
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Christopher Smolicz
DATE:26 May 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 26 May 2016 at 10:11am

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] April 2013 and the delegate refused to grant the visa [in] December 2013.
[In] January 2014 the applicant applied to the Refugee Review Tribunal (RRT) to review the delegate’s decision. The applicant appeared before the RRT, differently constituted, on 23 January 2015 (the first hearing).
On 31 July 2015 the RRT affirmed the Department’s decision not to grant the applicant a Protection visa.[1]The applicant sought judicial review of the RRT decision to the Federal Circuit Court of Australia (FCCA). [In] October 2015 the matter was remitted by consent on the basis that the Member failed to consider the applicant’s claims based on being a returnee failed asylum seeker and failed to make any findings in relation to any risk of significant harm on his return to Sri Lanka.
[1] RRT decision ref. 1400558
The matter is now before the Tribunal differently constituted pursuant to the order of the FCCA.
The applicant appeared before the Tribunal on 14 April 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. The applicant was represented in relation to the review by his registered migration agent.
If the Tribunal is reconstituted following a remittal, the reconstituted Tribunal is not bound by any findings on the review made by the Tribunal as previously constituted. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
The Tribunal explained to the applicant at the commencement of the hearing that it was assessing his claims afresh and was not bound by the findings of the Department or the first Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 3882
Decision Date: 26 May 2016

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a non-citizen applicant. The applicant sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the delegate's decision not to grant the applicant a protection visa. The Tribunal had explained to the applicant at the commencement of the hearing that it was assessing his claims afresh and was not bound by the findings of the Department or the first Tribunal.

The legal issues before the court were whether the applicant met the criteria for a protection visa as set out in section 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth). Specifically, the court considered whether the applicant was a person in respect of whom Australia had protection obligations under the 'refugee' criterion, defined by the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, or under the 'complementary protection' criterion, which requires substantial grounds for believing that removal would result in a real risk of significant harm.

The Tribunal considered the applicant's factual claims and the relevant country information for Sri Lanka. It also took account of policy guidelines from the Department of Immigration and the Department of Foreign Affairs and Trade. The Tribunal found that the applicant did not satisfy the criterion for a protection visa, as there was no suggestion that the applicant was a member of the same family unit as a person who satisfied the refugee or complementary protection criteria and held a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal explained to the applicant at the commencement of the hearing that it was assessing his claims afresh and was not bound by the findings of the Department or the first Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE 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. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal had taken 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 country information assessment on Sri Lanka dated 18 December 2015 prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that it is relevant to the decision under consideration.The applicant’s factual claims and the Tribunal’s findings

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.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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