1720461 (Refugee) - [2022] AATA 3221

1720461 (Refugee) [2022] AATA 3221 (19 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 1720461

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Paul Noonan
DATE:19 August 2022
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 19 August 2022 at 4.03pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – involvement with Liberation Tigers of Tamil Eelam (LTTE) – failed asylum seeker – attack on a naval base – detention – torture – physical injuries and scarring – areas formerly under LTTE control – Tamil community involvement in Australia – illegal departure – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
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 dependants.
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 on 23 August 2017 to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE-790) (‘SHEV’) under the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 29 September 2015. The delegate refused to grant the visa on the basis that the applicant does not have any significant involvement with the Liberation Tigers of Tamil Eelam (‘LTTE’) and does not have a profile that would warrant adverse attention from the Sri Lankan authorities and that the applicant does not meet the criteria for protection from Australia. The delegate was satisfied that the applicant’s country of nationality is Sri Lanka, and the Tribunal is also satisfied, on the basis of the biodata with respect to his birth certificate, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claim with respect to Sri Lanka, as the country of reference for the purposes of this appeal.
The applicant appeared before the Tribunal on 24 June 2022 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 is represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That…

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.

Continue reading 1720461 (Refugee)

Details

AGLC: 1720461 (Refugee) [2022] AATA 3221
Case: [2022] AATA 3221
Decision Date: 19 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a Tamil Hindu from Sri Lanka, claimed to fear persecution upon return due to his ethnicity, his former residence in an area formerly controlled by the Liberation Tigers of Tamil Eelam (LTTE), and an imputed political opinion of affiliation with the LTTE. The applicant also detailed past detentions and beatings by the Sri Lankan Army, an injury sustained during an airstrike, and his subsequent flight to India and departure from there.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of the Migration Act 1958 or, alternatively, whether Australia had protection obligations towards him under the complementary protection criterion. This involved assessing the credibility of his claims regarding past involvement with the LTTE, the risk of persecution or significant harm upon return to Sri Lanka, and the availability of effective protection measures in Sri Lanka. The Tribunal also considered whether the applicant could reasonably relocate within Sri Lanka to avoid any risk.

The Tribunal found that while the applicant was a Tamil Hindu, the delegate was not satisfied of the credibility of his claimed membership and involvement with the LTTE. The delegate concluded that the applicant's profile was not of significant interest to Sri Lankan authorities and that he would not face serious harm or persecution upon return. The Tribunal noted that the applicant attended community meetings in Australia discussing issues faced by the Tamil community. The Tribunal also considered the provisions of section 36(2)(a) and 36(2)(aa) of the Migration Act, which define refugee status and complementary protection obligations, respectively, and the definitions of "significant harm," "torture," and "cruel or inhuman treatment or punishment."

Ultimately, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act. The Tribunal also determined that the exception regarding third country protection did not apply, as there was no evidence the applicant had a right to enter and reside in any country other than Sri Lanka.

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 interviewed by the delegate on 25 July 2017. For the purposes of his application to the Tribunal the applicant provided a copy of the delegate’s decision.CONSIDERATION OF Claims and evidence The applicant made the following pertinent disclosures with respect to his background and profile in his written claim for protection. He was born on [date] in [Town 1], Sri Lanka. He speaks, reads and writes the Tamil language. He stated he is of the Tamil ethnicity and an adherent to the Hindu faith. In his written claims for protection the applicant made the following claims (in summary) with respect to fearing persecution should he be required to return to Sri Lanka as follows: ·The applicant fears returning to Sri Lanka on account of his Tamil ethnicity and being from a former LTTE controlled area. He fears that the Sri Lankan authorities will impute an affiliation with the LTTE.·He claims that in [year] the Sri Lankan Army performed an airstrike on a Tamil [location] he attended. The applicant claims he [sustained a severe injury to his Body Part 1] in this airstrike.·In 2002 and 2004 the applicant was detained and beaten by the Sri Lankan Army as he was suspected of being affiliated with the LTTE. He claims that he was a member of the LTTE between the middle of 1999 and 2005, he joined after recruiters of the LTTE came to his school. He claims that due to his injury to his [Body Part 1], the applicant was a family liaison, making contact between family members of the LTTE and notifying relatives of deceased LTTE cadres. ·In 2006 a bomb blast occurred within the local Sri Lankan Navy base. As he lived close to the naval base, he claims that his family was brought in for questioning and was released – the applicant feared he would be accused of supplying information to the LTTE and went into hiding and fled for India. ·In 2010 he was advised by Indian authorities that they were providing information to the Sri Lankan authorities about LTTE affiliates in camps in India. Following this he left India. The delegate was satisfied that the applicant is a Tamil Hindu. However, the delegate found that the applicant was not a high ranked individual and was not satisfied that his newly introduced claimed involvement and membership of the LTTE was credible. The delegate was not satisfied that the applicant’s profile was of any interest to the Sri Lankan authorities when he departed Sri Lanka and found that the applicant would not face any serious harm or persecution due to a lack of criminal history and any significant involvement with the LTTE should he return to Sri Lanka. In a written submission to the Tribunal the applicant noted that he attends meetings and functions facilitated by [Community Organisation 1]. He meets and speaks about issues faced by the Tamil Community in Australia and Sri Lanka. They discuss the situation in Sri Lanka and ongoing issues faced by our community. They also celebrate cultural and religious traditions.

Decision

Reasons for decision

Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Sri Lanka and as such the exception with respect to third country protection contained at s 36(3) does not apply. decision The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Paul NoonanMemberAttachment - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.Procedural History The applicant arrived at Christmas Island unlawfully [in] March 2011. On 14 April 2011, the applicant lodged a Protection Obligations Determination (‘POD’) whereby a negative assessment was made on 30 June 2011. On 25 May 2012 the applicant was found to be owed protection on a Independent Protection Assessment (‘IPA’). On 29 September 2015, the section 46(a)(1) bar was lifted for the lodgement of a protection visa, with the applicant being invited to apply for a protection visa on 25 November 2015. On 25 January 2016, the applicant lodged a Safe Haven Enterprise Visa (Class XE-790) (‘SHEV’) which was refused on 23 August 2017. The applicant was interviewed by the delegate on 25 July 2017. For the purposes of his application to the Tribunal the applicant provided a copy of the delegate’s decision.CONSIDERATION OF Claims and evidence The applicant made the following pertinent disclosures with respect to his background and profile in his written claim for protection. He was born on [date] in [Town 1], Sri Lanka. He speaks, reads and writes the Tamil language. He stated he is of the Tamil ethnicity and an adherent to the Hindu faith. In his written claims for protection the applicant made the following claims (in summary) with respect to fearing persecution should he be required to return to Sri Lanka as follows: ·The applicant fears returning to Sri Lanka on account of his Tamil ethnicity and being from a former LTTE controlled area. He fears that the Sri Lankan authorities will impute an affiliation with the LTTE.·He claims that in [year] the Sri Lankan Army performed an airstrike on a Tamil [location] he attended. The applicant claims he [sustained a severe injury to his Body Part 1] in this airstrike.·In 2002 and 2004 the applicant was detained and beaten by the Sri Lankan Army as he was suspected of being affiliated with the LTTE. He claims that he was a member of the LTTE between the middle of 1999 and 2005, he joined after recruiters of the LTTE came to his school. He claims that due to his injury to his [Body Part 1], the applicant was a family liaison, making contact between family members of the LTTE and notifying relatives of deceased LTTE cadres. ·In 2006 a bomb blast occurred within the local Sri Lankan Navy base. As he lived close to the naval base, he claims that his family was brought in for questioning and was released – the applicant feared he would be accused of supplying information to the LTTE and went into hiding and fled for India. ·In 2010 he was advised by Indian authorities that they were providing information to the Sri Lankan authorities about LTTE affiliates in camps in India. Following this he left India.