1614812 (Refugee)

[2018] AATA 2972

1614812 (Refugee) [2018] AATA 2972 (18 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614812

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Ann Duffield

DATE:18 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 18 July 2018 at 2:17pm

CATCHWORDS
Refugee – Federal Circuit Court remittal - Protection Visa – Sri Lanka – Race – Tamil – Particular social group – Young Tamil male – Wealthy Tamil – Failed Tamil asylum seeker – Imputed political opinion – Supporter of the Liberation Tigers of Tamil Eelam – Applicant advised Tribunal to rely on decision of previously constituted Tribunal – Decision affirmed

Refugee – Ministerial Intervention – Where the applicant’s partner and children have been granted Subclass 790 (Safe Haven Enterprise) visas – Where the applicant is barred from applying as a member of his partner’s family unit – Where the applicant and his partner suffer from significant mental health issues – Significant hardship if applicant were to be made to depart Australia – Matter referred to the Department for consideration

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), 36, 65, 46A, 48A, 91R, 91S, 417, 425, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
SZFDV v MIAC (2007) 233 CLR 51
SZATV v MIAC (2007) 233 CLR 18

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 on 8 November 2012 and the delegate refused to grant the visa on 23 December 2013.

3. The applicant appealed that decision to the then RRT which affirmed the delegate’s decision on 27 May 2015. The applicant applied for judicial review of the Tribunal’s decision to the Federal Magistrate’s Court [in] June 2015. [In] August 2016 the Federal Court remitted the application to the Administrative Appeals Tribunal to reconsider the matter according to law.

4. The basis of the Federal Court’s decision lay in the failure of the previously constituted Tribunal to properly put its concerns to the applicant for his response pursuant to s.425 of the Migration Act in relation to an incident which, it turns out, he Tribunal mischaracterised.

5. The applicant appeared before the Tribunal on two occasions to give evidence and present arguments; on 20 October 2017 and 22 June. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent who attended both the Tribunal hearings.

7. For the following reasons the Tribunal affirms the decision under review but has strongly recommended that the Minister intervene to lift the bar preventing the applicant from applying as a member of his wife’s family group.

   RELEVANT LAW

8. 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.

   Refugee criterion

9. 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).

10. 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.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Relocation

22. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be “reasonable” is also a requirement when considering the definition of “refugee” and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV vi MIAC which held that whether relocation is reasonable, in the sense of “practicable”, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.

    State Protection

23. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a “real risk”: MIAC v MZYYL (20120 FCAFC 147.

    Section 499 Ministerial Direction

24. 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

25. According to the protection visa application, the applicant claims to be a citizen of Sri Lanka and of no other country. Given the personal details provided in that application, and contained in the delegate’s decision, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka. Sri Lanka is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

26. The Tribunal is further satisfied on the basis of the evidence before it that the applicant does not appear to have a right to enter and reside in any other country, therefore the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Migration Act.

    Issues

27. The issue in this case is whether the applicant has a well-founded fear of persecution for one or more of the five Convention reasons as set out in s.5J(1) of the Migration Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Sri Lanka there is a real risk he will suffer significant harm.

28. The applicant claims he fears returning to Sri Lanka because of the harm he will face for reasons of his race (Tamil ethnicity); membership of particular social groups (young Tamil men; wealth Tamils; failed Tamil asylum seeker returned to Sri Lanka and family connections to LTTE members); and perceived political opinions (of support for the LTTE and opposition to the Government of Sri Lanka). The applicant articulated these in his statement to the delegate of the department of immigration (Folios 31-33 of the department’s file).

    a.He is an ethnic Tamil;

    b.He has been imputed with the political opinion that he is involved with the LTTE;

    c.He was kidnapped on his way to class, tortured and beat him for 8 days in [a particular village]. There were 3 other boys there with him. He was questioned about his involvement with the LTTE and forced to sign a document. He eventually escaped out of a window and over the roof with the other boys. They found someone with a mobile phone and he called his father who came to pick him up;

    d.The applicant’s father lodged a complaint with the police who said they would investigate but did not;

    e.After the kidnapping the family moved to [a particular town] and the kidnappers started looking for him there as well. He claims that these people also tried to capture his brothers and that is why they were sent overseas;

    f.The applicant claims his father decided he should hide in [City 1] where he remained for four years before going to [another country] for work between 2006 until January 2010. He returned to Sri Lanka in that period for 3 months in 2009 to visit his family;

    g.The applicant claims that he was forced to  return to Sri Lanka in 2010 because his father was ill;

    h.In [2011] the white van came and [a number of] armed men entered his house and beat both of his parents and locked them in a room [at a particular time]. He claims they dragged him from his bed and beat him and put him in the van and took him somewhere. The men called his father and asked him to pay [a particular amount] but he was able to pay [a lesser amount] to secure his release. His father lodged a complaint with the police and also with the Human Rights Commission but no action was taken;

    i.His father decided that Sri Lanka was not a safe place for him. His father made the decision and also all the arrangements to secure his passage to Australia with the assistance of smugglers;

    j.The applicant fears that if he returns to Sri Lanka he will face arrest and abuse as he has already been subject to arrest and torture by the Sri Lanka authorities. He fears that he will suffer further harm or mistreat him because he is Tamil. He also fears the armed men in the white van. He fears that he will be imputed with a political opinion of being associated with the LTTE because he is a young Tamil male;

    k.The applicant claims he also fears persecution for seeking asylum in a western country;

    l.The applicant claims that the authorities in Sri Lanka cannot protect him because they are the ones persecuting him;

    m.The police have done nothing and cannot protect him even after he has reported the incidents to them; and

    n.He cannot relocate to anywhere else in Sri Lanka because Tamils face persecution in all parts of Sri Lanka. He fears that he will suffer arbitrary arrest and detention, imprisonment, physical assault and torture, possibly death at the hands of the Sri Lanka Authorities because he is a young Tamil male with an imputed political opinion of being associated with the LTTE and because he has sought asylum in a western country.

29. The applicant provided various documents to support his claims, including police reports, medical reports, newspaper articles and other information about the persecution of Tamils in Sri Lanka from a variety of sources including Human Rights Watch and a detailed submission from his representatives.

30. In the submission from his representatives the applicant also claimed that he suffered [serious injuries] to [various parts of his body] as a result of an attack in 2002. He also suffers from post-traumatic stress disorder and exhibits abnormal behaviours. As a result of his current circumstances he suffers from stress and anxiety and this affects his concentration and memory. The applicant claims that his psychological state and vulnerability will expose him to an increased risk of harm should be returned to Sri Lanka through his inability to access medical and psychological care essential to his well-being. He expanded on his written claims at folio 130 of the department’s file as follows:

    a.The applicant has a number of family members who were previously active in the LTTE including [Relative 1] who was forcefully recruited into the LTTE and is still missing and presumed dead;

    b.The applicant’s father was frequently taken in for questioning about [Relative 1]’s involvement in the LTTE;

    c.The applicant’s [Relative 2] was a member of the LTTE and was shot and killed by the Sri Lankan Army in 1996;

    d.The applicant’s [Relative 3] was a member of the LTTE who was also shot and killed by the Sri Lankan Army in around 1991;

    e.The applicant’s family’s actual and perceived links to the LTTE mean that he will be persecuted upon his return to Sri Lanka as an imputed supporter of the LTTE;

    f.The applicant will be identifiable as a member of a particular social group of members of wealthy Tamil families; and

    g.The men in the white van visited his family home in [2013] and demanded money from his father and assaulted his mother, resulting in her hospitalisation.

31. The delegate accepted the following claims made by the applicant :

    a.That he is a Tamil;

    b.Three family members had involvement with the LTTE between 1990 and 1996;

    c.That he was abducted by people in a white van in 2001;

    d.That he was abducted by [group 1] as claimed in 2011;

    e.That his family operate a [business] in Sri Lanka;

    f.The SLA have made enquiries about the applicant’s whereabouts since his departure from Sri Lanka;

    g.The applicant has sought asylum in a Western Country; and

    h.The applicant suffers from stress and anxiety

32. The delegate DID NOT accept the following claims made by the applicant:

    a.That the applicant has LTTE links;

    b.That the applicant and his father are perceived to hold a pro-LTTE political opinion for reasons of their family member’s association with the LTTE between 1990 and 1996 or for any other reason; or

    c.That persons in a white van visited the applicant’s home and demanded money from his father and assaulted his mother in [2013]

    First Tribunal Review

1. The previously constituted Tribunal found the applicant’s accounts of his past harm in Sri Lanka differed in material respects from his statements to the delegate and his evidence to the Tribunal. In particular it found that in his evidence to the Tribunal regarding his 2002 abduction he claimed he was detained for [a number of] days and his father paid money to release him and he spent [a number of] days in hospital. In his written statement he said he was kept for [a longer period of time] and he and three other boys escaped out of a window and found someone with a mobile phone and called his father. (The Tribunal notes that the previously constituted Tribunal’s reference to his abduction with three other boys was misconstrued by that Tribunal in its decision and that was the basis of the remittal from the Federal Circuit Court. The applicant did not claim he was abducted with three other boys, only that they were detained with him at an unknown place).

2. The applicant also gave evidence at the previously constituted Tribunal’s hearing that in 2012 he was taken by motorbike a long way from his home. He claimed that his mother and sister were at home, but not his father; the applicant was detained for [a number of] days with four other people and they escaped through a loose tile on the roof.

3. However, in his statement to the delegate the applicant claimed that he was taken by four armed men at [a particular time] from his house in [2011]; they beat his parents, locked them in a room and later called his parents for a ransom of [a particular amount] but settled for [a lesser amount] before they released him. He was detained for [a number of] days.

4. The applicant also provided a third account of an abduction to the previously constituted Tribunal but resiled from this account and confirmed there were only two abductions.

5. The previously constituted Tribunal also put to the applicant that his school records and hospital records did not support his account of being abducted on his way to school in 2002.

6. The previously constituted Tribunal did not accept that the applicant was abducted by Karuna or that his family were targeted by them or anyone.

7. The previously constituted Tribunal did not accept many of the documents provided to it as evidence supporting the applicant’s claims. Indeed the previously constituted Tribunal found that many of the documents were fraudulent and fabricated. It did not accept that the applicant or his father were of interest to the authorities in the past or currently or that he was taken to the police station and beaten and only released upon the payment of a bribe. It did not accept that the applicant’s family have been harassed or intimidated or that anyone is looking for the applicant or that anyone in the family is wanted by authorities.

8. The previously constituted Tribunal did not accept that the applicant or his family was of interest to the police, CID, authorities or Karuna or TMVP or paramilitary groups or, indeed anyone. The previously constituted Tribunal did not accept that there are any police complaints, human rights complaints made in respect of the applicant or that he was abducted or assaulted or threatened or that his father or brother were questioned or assaulted or that his father was forced to resign his job. The previously constituted Tribunal did not accept that the applicant or his family were suspected LTTE or that anyone was looking for them.

9. The previously constituted Tribunal found that the applicant was not a witness of truth and has fabricated his evidence to support his claims.

10. The previously constituted Tribunal found that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity from the Sri Lankan authorities, or for any other reason in the reasonably foreseeable future, if he returned to Sri Lanka.

    Federal Circuit Court

11. The Federal Circuit Court remitted the previously constituted Tribunal’s decision for reconsideration on the basis that it misconstrued a claim which subsequently formed the basis for a finding that the applicant lacked credibility (see also paragraph 33 above).

    Second Tribunal Review

12. In a statement submitted to the Tribunal prior to the scheduled hearing the applicant provided a timeline of his interviews and applications for a protection visa since his [arrival] as an Irregular Maritime Arrival [in] July 2012.

13. The applicant stated that he had formed a relationship with [Ms A] who is also an applicant for a Protection visa and they had a child born to them [in] 2016. The applicant claims that these matters have made his position more vulnerable in relation to him ever returning and living in Sri Lanka.

14. The applicant told the Tribunal to rely on the claims previously provided despite the discrepancies in his evidence and submissions due to his memory loss, anxiety and mental health issues.

15. The applicant did not provide the Tribunal with any further information, evidence or documentation to support his claims.

16. The issue in this case is whether Australia has protection obligations under the Refugee Convention or under its complementary protection criteria.

    Hearing summary

17. The Tribunal put to the applicant at the hearing that depending upon his response, or further explanations, submissions or account of events, it would rely on the adverse information that was contained in the delegate’s and previous Tribunal’s decision which found that he did not face a real chance of being persecuted for a convention relation reason and affirm the decision under review.

18. The applicant told the Tribunal to rely on his previous claims as they were all true. He said that he was tired of having to repeat himself to various decision makers as it was adversely affecting his mental illness. He said that he suffered from stress related conditions and he has been going to see psychologists at [a particular health service provider].

19. The applicant told the Tribunal that he was in a relationship with [Ms A] in Australia and they had a child together and she was pregnant with their second child. He also said that he assisted her in looking after her child from another relationship. He said they were not married but had exchanged rings. He said they were not living together at the moment but nevertheless considered themselves in a relationship. He told the Tribunal that his partner had suffered a lot in the past and found it difficult living with a man. He said that she was getting help from [a particular health service provider] and was getting better. He told the Tribunal that she had applied for a Subclass 790 protection visa. The applicant told the Tribunal that his relationship with his partner would also be a cause of persecution if he returned to Sri Lanka. Asked why that would be the applicant said that there were people against her and the CID had visited her mother.

20. When pressed by the Tribunal to give an account and reasons for seeking protection the applicant became distressed and told the Tribunal that he had a bad headache. The Tribunal put to him that this was his opportunity to put his case and whilst it understood his frustrations and stress, it was important that he provide whatever information he could. The applicant said that he could not take it anymore and would not give any further evidence or claims.

21. The Tribunal suggested to the applicant’s representative that it may be preferable for him to provide a written submission to the Tribunal as it was clear that the applicant was unable to proceed. The Tribunal received further submissions and documents over the following weeks including the following:

    a.Statutory declaration from the applicant’s partner setting out an account of her relationship with the applicant and of her own refugee claims;

    b.Birth certificates for both children naming the applicant as father;

    c.Copy of the subclass 790 visa granted to the applicant’s partner;

    d.Statutory declaration from the applicant;

    e.Statement from the applicant’s psychologist setting out his history and conditions including his deterioration over the course of the past months;

    f.Marriage certificate of the applicant and his partner dated [in] June 2018;

    g.An application to the Tribunal to consider the applicant’s claims as a member of the family group of his now wife.

22. The Tribunal wrote to the applicant on 1 May 2018 informing him that he was not eligible to be considered as a family member of the same family unit as he did not apply for a protection visa of the same class as that granted to his now wife. The Tribunal invited the applicant to comment on that information in writing or seek an additional hearing. The applicant responded with some comments on that information and also sought an additional hearing.

23. A second hearing was conducted on 22 June 2018. The applicant, through his representative argued that the applicant should be considered as part of his wife’s family unit because the provisions of s.36(2)(b)(ii) which states that the family member “holds a protection visa of the same class” should be read as meaning “all protection visas” or “all possible protection visas”. The Tribunal made its position clear in that the legislation referred specially to a visa “of the same class” and it could not look behind that. The Tribunal also told the applicant that it could not make a decision on whether he met the requirements of a subclass 790 visa as there was no application before it.

24. The Tribunal put to the applicant and his adviser that based on the previous hearing and the current submissions the Tribunal was forming a view that his protection visa would be refused again. The Tribunal put to the applicant that it was a matter for him how he wished to proceed, but if he wanted to apply as a member of his wife’s family unit he would first need to ask the Minister to intervene to lift the s.46A and s.48A bar which prevents him from applying for a further visa application.

25. The Tribunal gave the applicant additional time to provide a further submission which it received on 4 July 2018. In that submission the applicant argues that the applicant is married to the holder of a protection visa and has two biological children and a step child to look after. The applicant and his wife have suffered significant harm in the past and are suffering stress and anxiety whilst the current process has extended over a period of some 6 years.

26. The applicant seeks the Tribunal’s assistance in appealing to the minister to lift the bar.

    FINDINGS AND REASONS

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

28. The Tribunal is aware of its responsibility to hear the applicant’s claims afresh and that it is not able to rely on the decisions of the previously constituted Tribunal’s or of the departmental delegate.

29. However, in the present case the applicant and his adviser have directed the Tribunal to rely on the decision of the previous Tribunal, stating that they have nothing further to add. The applicant told the Tribunal that he had told the truth at all times in the past and that his mental health had been adversely affected by the length of time this process had taken. He said that he has a wife and three children to care for and that his wife is also suffering from mental health issues as a result of the trauma she faced when she was in Sri Lanka. The applicant told the Tribunal that every time he had to recount the traumatic events of the past he became seriously ill. The applicant has asked that the Tribunal take into account these matters in coming to its decision.

30. The Tribunal advised the applicant at the time of both hearings that if it relied on the information in the previous Tribunal’s decision it would affirm the decision under review and he understood that was the case.

31. The applicant was given several opportunities over several months to provide the Tribunal with additional information which he has done. The Tribunal has taken that into account in finalising this matter.

    CONCLUSION

32. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

33. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has also satisfied itself that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

34. Despite his assertion to the contrary, 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).

    MINISTERIAL INTERVENTION

35. Nevertheless given the circumstances of the case, the Tribunal strongly urges the Minister to intervene and lift the bar that would allow the applicant to apply for a visa on the basis of his being the member of his wife’s family for the following reasons:

    a.The applicant has a wife and three children (two of whom are his biological children) in Australia;

    b.His wife and children have been granted subclass 790 visas;

    c.His wife’s refugee claims were accepted and she cannot return with their children to Sri Lanka if he is required to depart, thus breaking up their marriage and the family unit;

    d.There is strong evidence that the mental health of the applicant’s wife would suffer adversely if the applicant were required to depart Australia;

    e.The applicant himself has significant mental health issues that would adversely affect his ability to relocate successfully to Sri Lanka.

    DECISION

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

    Ann Duffield
    Senior Member