1708008 (Refugee)

Case [2018] AATA 5002

1708008 (Refugee) [2018] AATA 5002 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708008

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Jane Marquard

DATE:15 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2018 at 11:17am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party activist – particular social group – people smugglers – failed asylum seeker – illegal departure – property damage – fear of torture – personal revenge – law of general application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91R, 91S, 424A, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAPO v MIBP [2015] FCCA 96
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZSSJ v MIBP [2015] FCAFC 125
SZTAL v Minister for Immigration and Border Protection, SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
Weheliye v MIMA [2001] FCA 1222

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

OVERVIEW

  1. The applicant is a citizen of Sri Lanka. He is of Sinhalese ethnicity and comes from [his home town in] [District 1] Sri Lanka.

  2. He arrived in Australia [in] July 2012 by boat. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 23 July 2013. A delegate of the Department of Immigration (the Department) refused to grant the visa on 21 August 2013.

  3. The applicant applied for a review of that decision by the Refugee Review Tribunal (the RRT). On 18 February 2014 the RRT affirmed the Department’s decision.

  4. The applicant appealed this decision to the Federal Circuit Court of Australia. [In] March 2017 the Federal Circuit Court of Australia quashed the decision of the RRT and remitted it to the Administrative Appeals Tribunal (the Tribunal) for reconsideration, on the basis that: ‘the RRT had failed to consider an integer of the applicant’s claim, namely whether he facilitated the illegal departure of other persons from Sri Lanka by assisting a people smuggler in driving the boat, and whether that may give rise to a fear of…

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AGLC
1708008 (Refugee) [2018] AATA 5002
Case
[2018] AATA 5002
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Sri Lankan national. The applicant claimed he feared persecution due to his political activities supporting the United National Party (UNP) and personal threats from members of the ruling party. He also expressed fear of Sri Lankan authorities due to his unlawful departure from the country. The Federal Circuit Court was required to review the decision of the Administrative Appeals Tribunal (AAT) which had found that the applicant did not meet the criteria for a protection visa or complementary protection.

The primary legal issues before the court were whether the AAT had erred in its assessment of the applicant's claims regarding his fear of persecution based on political opinion and whether he could establish membership of a particular social group. Specifically, the court had to consider if the AAT had adequately assessed the evidence relating to threats made against the applicant, the actions of the ruling party and individuals like Mr. A, and the applicant's inability to relocate within Sri Lanka. The court also had to determine if the AAT had properly considered the applicant's fear of Sri Lankan authorities and the potential for personal revenge.

The court affirmed the AAT's decision, finding that while the applicant had provided evidence of political involvement and some threats, these were not sufficient to establish a well-founded fear of persecution for a Convention reason. The court noted that the threats described, including property damage and personal animosity, did not necessarily rise to the level of persecution. Furthermore, the court found that the applicant's fear of Sri Lankan authorities was primarily related to his unlawful departure, which is a matter of general application and not indicative of persecution based on a Convention reason. The AAT's assessment that the applicant had not established membership in a particular social group, such as failed asylum seekers or those targeted by people smugglers, was also upheld. The court concluded that the AAT had applied the correct legal principles and had not made any reviewable errors in its findings of fact or application of the law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this matter, the Tribunal has significant sympathy for the applicant’s situation as he has been living in Australia away from his family since 2012 and has been in detention for a substantial amount of that time. Since he has been in Australia his wife has left him, which is distressing for him and he has not been in touch with his children. The substantial period in detention has had negative mental health impacts on him. However after considering all of the evidence, the Tribunal is not satisfied that the applicant meets the protection or complementary protection criteria. A summary of the evidence, and findings and reasons for the decision, are set out below.CLAIMS AND EVIDENCEEvidence before the Department In his Irregular Maritime Arrival Entry Interview, conducted when the applicant first arrived in Australia, the applicant said that:·From [specified year] to [year] he worked as a fisherman, catching [a specified fish] mostly, and was out to sea for up to 6 weeks at a time;·From 2004 to 2012 he worked for ‘[name]’, the owner of the boat, [in a specified role], fishing [a specified fish];·His [Relative A] contested the election in 2011 (the year before the Interview), and asked the applicant to help. The applicant helped him put up posters and banners. He was threatened with death because of this. About three to four supporters came to his house and broke his fences. This was three months before he left the country. The other party won the election and so he travelled to Australia to protect himself. He could not remember his [Relative A’s] full name;·He had no other issues of concern in Sri Lanka;·One of his friends, a man named [Friend A], told him a boat was leaving and he got [Amount 1] rupees and paid it to [Friend A] and he came on a boat organised by [Smuggler A]. When he came on the boat, [Smuggler A] asked him for [a larger amount, Amount 2] rupees and the applicant said that he did not have that much money. [Smuggler A] then said if he helped drive the boat, he would reduce the amount payable to [Amount 1] rupees. He said that he should get on the boat and help them drive it;·If he returned ‘those people’ would come and give him trouble. After they left the country, they burnt his nets and equipment and if he returned they would give him trouble. In a statutory declaration sworn by the applicant on 23 July 2013 submitted as part of his application to the Department, he provided, in summary, the following information:·He was [an age]-year-old born in [a named town in] [District 1], Sri Lanka. He is ethnic Sinhalese and is a Catholic. He is married and has [number] children in Sri Lanka;·He left Sri Lanka because of threats to his life because of his political activities in support of the UNP. In 2006 or 2007 his [Relative A, named] contested the local elections for his village of [Village 1] and won as candidate for the UNP. He was at sea fishing during the elections and found out when he came back and he joined his [Relative A] to work for him and the UNP. He did whatever his [Relative A] asked him to do as a supporter, such as canvassing and door knocking, putting up posters and banners and participating in meetings;·One day he was at a meeting and members of the ruling party arrived and fought with his party and the applicant, and after this, members of the party went to his home and destroyed his fence and windows of his home, because he was blamed for tearing down the posters put up by his political opponents. His mother was home and they said they would kill him;·His [Relative A] lost the election in 2007 or 2008 and three or four days later some strangers went to his house looking for him, however he was not home at the time. They told his mother he should go to town to meet them. He went to a friend’s house to borrow clothes and then went to [Town 1] where he stayed with a friend for 2–3 days. He had to stay away from his village because [Mr A], who is one of the opposition members, believed that the applicant had insulted his sister in front of others. He denies that he said anything to [Mr A’s] sister;·About 3–4 months later he returned to his village but not to his home as he was still in hiding. His [Relative A] had also been receiving threats from the opposition party, so his [Relative A] left his village and went fishing in [Town 2]. He went there and fished with his [Relative A] for around 2 years. He would return to his village only for a religious festival and for Christmas. [Mr A] is still ‘after him’. In mid-2010, his elder brother was cycling and [Mr A’s] brother and his associates stopped him and asked him where the applicant was;·In 2011 he had to return to his village as there were not enough fish in [Town 2]. He was there for around 2 months when a friend informed him of the trip to Australia. His friend organised the trip to Australia; ·He will be harmed and killed because of his political activities and he has lived in hiding for the last few years because of the threats. He will be harmed by [Mr A] and his powerful brother and other members of the ruling party because of his activities in support of the UNP;·He fears the Sri Lankan authorities because he left that country unlawfully and he believes the authorities will put him in gaol for a long time; ·He cannot relocate to another part of Sri Lanka because members of the opposition party have power and connections and they will find him; ·The authorities in Sri Lanka cannot protect him because the ruling party has threatened that if he reports the threats, then he will be harmed. He also fears the authorities because they are the ones who will persecute and harm him. The delegate’s decision

Decision

Reasons for decision

In a statutory declaration sworn by the applicant on 23 July 2013 submitted as part of his application to the Department, he provided, in summary, the following information:·He was [an age]-year-old born in [a named town in] [District 1], Sri Lanka. He is ethnic Sinhalese and is a Catholic. He is married and has [number] children in Sri Lanka;·He left Sri Lanka because of threats to his life because of his political activities in support of the UNP. In 2006 or 2007 his [Relative A, named] contested the local elections for his village of [Village 1] and won as candidate for the UNP. He was at sea fishing during the elections and found out when he came back and he joined his [Relative A] to work for him and the UNP. He did whatever his [Relative A] asked him to do as a supporter, such as canvassing and door knocking, putting up posters and banners and participating in meetings;·One day he was at a meeting and members of the ruling party arrived and fought with his party and the applicant, and after this, members of the party went to his home and destroyed his fence and windows of his home, because he was blamed for tearing down the posters put up by his political opponents. His mother was home and they said they would kill him;·His [Relative A] lost the election in 2007 or 2008 and three or four days later some strangers went to his house looking for him, however he was not home at the time. They told his mother he should go to town to meet them. He went to a friend’s house to borrow clothes and then went to [Town 1] where he stayed with a friend for 2–3 days. He had to stay away from his village because [Mr A], who is one of the opposition members, believed that the applicant had insulted his sister in front of others. He denies that he said anything to [Mr A’s] sister;·About 3–4 months later he returned to his village but not to his home as he was still in hiding. His [Relative A] had also been receiving threats from the opposition party, so his [Relative A] left his village and went fishing in [Town 2]. He went there and fished with his [Relative A] for around 2 years. He would return to his village only for a religious festival and for Christmas. [Mr A] is still ‘after him’. In mid-2010, his elder brother was cycling and [Mr A’s] brother and his associates stopped him and asked him where the applicant was;·In 2011 he had to return to his village as there were not enough fish in [Town 2]. He was there for around 2 months when a friend informed him of the trip to Australia. His friend organised the trip to Australia; ·He will be harmed and killed because of his political activities and he has lived in hiding for the last few years because of the threats. He will be harmed by [Mr A] and his powerful brother and other members of the ruling party because of his activities in support of the UNP;·He fears the Sri Lankan authorities because he left that country unlawfully and he believes the authorities will put him in gaol for a long time; ·He cannot relocate to another part of Sri Lanka because members of the opposition party have power and connections and they will find him; ·The authorities in Sri Lanka cannot protect him because the ruling party has threatened that if he reports the threats, then he will be harmed. He also fears the authorities because they are the ones who will persecute and harm him. The delegate’s decision

Ratio Decidendi

Legal Principle Established

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