1621982 (Refugee) - [2019] AATA 4800

1621982 (Refugee) [2019] AATA 4800 (11 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621982
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Alison Murphy
DATE:11 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 July 2019 at 9:41am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – persons suffering severe mental illness – identifiable group of persons set apart by their common characteristics – stigma associated with mental illness – physical and emotional abuse from family – electroconvulsive treatment (ECT) without consent – women in Sri Lanka – combined factors of gender and mental illness – capacity to subsist – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a 32 [age] year old female from Kandy, Sri Lanka who seeks to invoke Australia's protection obligations so that she does not have to return to Sri Lanka, where she claims to fear harm from her family and on the basis of her poor mental health.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm. A summary of the relevant law is contained in Attachment A.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision of the delegate should be remitted for reconsideration.
History of proceedings
The applicant arrived in Australia [in] February 2010 as the holder of a [student] visa and she has not departed since. Her most recent student visa ceased on 30 August 2014 and she applied for the protection visa on 25 August 2014. A delegate of the department refused to grant the visa to…

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: 1621982 (Refugee) [2019] AATA 4800
Case: [2019] AATA 4800
Decision Date: 11 July 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Sri Lankan national. The applicant claimed she feared persecution if returned to Sri Lanka due to her mental illness, which she alleged would expose her to physical and emotional abuse from her family and non-consensual medical treatment, including electroconvulsive therapy. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), specifically whether she was a person in respect of whom Australia had protection obligations under the Refugees Convention.

The central legal issue was whether the applicant constituted a "particular social group" as defined by Article 1A(2) of the Refugees Convention, and whether she had a well-founded fear of persecution for reasons of membership in that group. This involved assessing whether persons suffering severe mental illness in Sri Lanka, particularly women, formed an identifiable group with common characteristics, and whether the stigma associated with mental illness, combined with potential family abuse and lack of state protection, amounted to persecution involving serious harm. The Tribunal also considered the applicant's capacity to subsist and the possibility of internal relocation within Sri Lanka.

The Tribunal found that the applicant was a Sri Lankan national and accepted her personal history as presented. It reasoned that the combination of factors, including her gender and severe mental illness, placed her within a particular social group that was identifiable and subject to stigma and potential abuse in Sri Lanka. The Tribunal was satisfied that the applicant had a well-founded fear of persecution, considering the potential for physical and emotional abuse, non-consensual treatment, and the lack of effective state protection. Consequently, the Tribunal concluded that Australia had protection obligations towards the applicant under the Refugees Convention.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion set out in section 36(2)(a) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was first invited to attend a hearing on 17 September 2018. For reasons relating to the applicant’s mental health and her capacity to give evidence, the hearing was adjourned and rescheduled on several occasions. On 2 May 2019 the Tribunal heard evidence from a witness, [Ms A]. On 25 June 2019 the Tribunal heard evidence from the applicant and further evidence from [Ms A].CONSIDERATION OF CLAIMS AND EVIDENCECountry of nationality It is not in dispute that the applicant is a Sri Lankan national and she has produced to the department copies of her Sri Lankan passport and national identity card. I find that the applicant is a citizen of Sri Lanka I have assessed her claims against that country.Personal history The applicant states that she is of Sinhalese ethnicity and Buddhist religion. The delegate’s decision (a copy of which was provided to the Tribunal by the applicant) sets out that the applicant has produced to the department a copy of her birth certificate, but stated at interview that the person named as her mother in that certificate is actually her step-mother and not her biological mother. She stated that her father had an affair with her biological mother who abandoned her shortly after she was born, with the result she was taken in by her father and step-mother and registered as their child in order to enrol her at school. The applicant stated it was only when she was older that her step-mother told her she was not her biological daughter. I note the country information cited in the delegate’s decision which indicates that children are eligible to receive free education in Sri Lanka as long as a birth certificate can be produced. That information indicates that forged birth certificates are readily available through agents in Sri Lanka and are used to support the issuance of fraudulent ID cards and passports[1]. The delegate accepted the applicant’s explanation as to the circumstances of her birth and her parentage as plausible. In light of this, and having heard the applicant’s own evidence at hearing, I accept the applicant is the step-child and not the biological child of the person named as her mother on her birth certificate.[1] Delegate’s decision dated 6 December 2016 The applicant has consistently stated she grew up with her father and his family in Kandy, completing primary and high school in that city. At hearing she told me she lived in a household comprising her father, step-mother, step-sister and [other relative]. She has no other siblings. The applicant lived and studied in [City 1], [Country 1] between 2006 and 2009 where she lived in a student hostel near the university and completed a [Qualification 1] before returning to her family home in Kandy. During this time she made multiple return trips to Sri Lanka. Her father, step-mother and step-sister remain in Sri Lanka. The applicant arrived in Australia [in] February 2010. Since arriving in Australia she studied a [Qualification 2] at [Institution 1] before she withdrew from that course. She studied a [Qualification 3] at [Institution 2] in 2011 and 2012 before being excluded. She completed a [Qualification 4] at [Institution 3] in 2013 and 2014. Since her arrival in Australia she has worked as a [Occupation 1] and is currently working casually as a [Occupation 2].

Decision

Reasons for decision

For these reasons I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore she satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Alison MurphyMemberATTACHMENT A - RELEVANT LAW 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 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. 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. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. 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.

Ratio Decidendi

Legal Principle Established

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