1721730 (Refugee)

Case [2020] AATA 6179

1721730 (Refugee) [2020] AATA 6179 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1721730

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Dr Colin Huntly

DATE:17 December 2020

PLACE OF DECISION:  Perth

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

Statement made on 17 December 2020 at 11:18am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected support for Liberation Tigers of Tamil Eelam (LTTE) – particular social group – Tamil male from the north of Sri Lanka – returnee from a Western country – detention – physical assault – voluntary return to Sri Lanka – support for Tamil causes – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 33
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 104, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ASIC v GetSwift Limited [2020] FCA 504
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SDAQ v MIMA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBEL v MIMIA (2006) 228 CLR 152
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253
Tetley v Goldmate Group Pty Ltd [2020] FCA 913
WAKK v MIMIA [2005] FCAFC 225

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act)

    BACKGROUND

    Applicant migration history

  2. The applicant arrived in Australia as an unauthorised maritime…

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AGLC
1721730 (Refugee) [2020] AATA 6179
Case
[2020] AATA 6179
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse the applicant, a Sri Lankan citizen, a protection visa. The applicant arrived in Australia as an unauthorised maritime arrival in March 2011 and was later permitted to apply for a protection visa in Australia. The delegate refused to grant the applicant a Safe Haven Enterprise visa on 6 September 2017, leading to the applicant's application for review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant engaged Australia's protection obligations. This required determining if the applicant held a well-founded fear of persecution in Sri Lanka, either now or in the reasonably foreseeable future, based on membership of a particular social group or actual or imputed political opinion. Alternatively, the Tribunal considered whether the applicant met the criteria for complementary protection grounds if returned to Sri Lanka.

The Tribunal applied the criteria for a protection visa as set out in s.36 of the Migration Act 1958 and Schedule 2 of the Migration Regulations 1994. It considered the applicant's claims of fear from Sri Lankan authorities due to his Tamil race, imputed political opinion as a Liberation Tigers of Tamil Eelam supporter, and membership of a particular social group as a returnee from the West or a failed asylum seeker. The Tribunal also had regard to Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments. The Tribunal noted the applicant's responsibility to present all claims and evidence to the primary decision-maker, and the potential for adverse inferences if new claims or evidence were raised without reasonable explanation. The Tribunal also considered its practice directions regarding case completion and the conduct of reviews, including the use of telephone hearings during the COVID-19 pandemic.

The Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act)BACKGROUNDApplicant migration history The applicant arrived in Australia as an unauthorised maritime arrival [in] March 2011. On 13 March 2012 the applicant was granted a UJ-449 Temporary Humanitarian visa and was released from detention. The applicant was also granted a WE-050 Bridging Visa. On 29 October 2015 the Minister ‘lifted the bar’ at s.46A(2) of the Act, permitting the applicant to apply for a Protection visa in Australia. On 29 September 2015 the applicant applied for a XE-790 Safe Haven Enterprise visa (SHEV). A delegate of the Minister refused to grant the applicant a SHEV in a written decision dated 6 September 2017. On 14 September 2017 the applicant applied to this Tribunal for a review of that decision.Proceedings before the Tribunal The applicant appeared before the Tribunal on two occasions to give evidence and present arguments, namely: by telephone on 29 September 2020; and, in person on 26 October 2020. The applicant was represented in this application by a registered migration agent. All hearings were held in the English language with the services of an interpreter fluent in both the English and Tamil languages.Identity The applicant claims to be a citizen of Sri Lanka. He provided copies of his personal identification documents to the Department of Immigration and this information is included in the applicant’s Departmental file. I have reviewed the applicant’s Departmental file and I have had the opportunity to interview the applicant on two occasions. In the basis of this information, I find the applicant is a citizen of Sri Lanka, which is also his receiving country for the purposes of the refugee and complementary protection assessments. There is nothing before me to suggest the applicant has a right to enter and reside in a third country for the purposes of a s.36(3) assessment.DECISION SUMMARY The issue in this case is whether the applicant engages Australia’s protection obligations because he holds a well-founded fear of persecution in Sri Lanka now, or in the reasonably foreseeable future for the essential and significant reason of his membership of a particular social group or because of his actual or imputed political opinion. In the alternative, if the applicant satisfies the requirements for a protection visa in Australia on complementary grounds if he were to return to Sri Lanka, now or in the reasonably foreseeable future. For the following reasons, I have concluded that the decision under review should be affirmed.DECISION-MAKING FRAMEWORK The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. Extracts of the relevant legislative provisions are attached to this decision below. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.Mandatory considerations

Evidence

Evidence Before The Court

With respect to contradictions, inconsistencies and omissions, the Guidelines state:Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[27][27]At [27]–[28].New claims and evidence Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[28][28]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Applicants are also expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:i.The ongoing requirement under s.104 of the Act for applicants to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; andii.Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that an applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. This is unremarkable, given that on one view the statutory provisions reflect ordinary principles of inquiry and inference. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so. INTRODUCTIONHearingsFirst hearing At the first hearing on 29 September 2020, I advised the applicant and his representative what documents I had in my possession and it was confirmed that I had all the relevant material before me. Also at the start of the hearing I surveyed the applicant’s claims for protection contained at pages 3-5 of the delegate’s record of decision. I noted the summary of claims elucidated by the applicant’s representative by email dated 29 August 2017 to the delegate[29] and repeated in pre-hearing submissions dated 23 September 2020[30] which was as follows:… the applicant fears harm from the Sri Lankan authorities on the basis of the following reasons:· Tamil race· Imputed Political Opinion as a Liberation Tigers of Tamil Eelam (LTTE) supporter/sympathiser/member.· Membership of a particular social group, returnee from the West/failed asylum seeker.[29]Delegate’s decision record at 5.[30]At 2.

Decision

Reasons for decision

For the following reasons, I have concluded that the decision under review should be affirmed.DECISION-MAKING FRAMEWORK The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. Extracts of the relevant legislative provisions are attached to this decision below. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.President’s Direction I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:· that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and· that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2][1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).[2]At [8.1]. As noted above, I exercised the discretion to hold the first hearing by telephone in September 2020. Both hearings with the applicant were held during the COVID-19 pandemic. I determined that it was reasonable to hold the first hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I note that this practice accords with the observations of the Tribunal as constituted in the related cases Tribunal Refugee Refs: 1816541 and 1820632 as follows:[3]As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[4] In this case, I formed the view that the matter could proceed through MS Teams. Both applicants had good access to the internet, there were few documents to consider, there was a private place in their home for the hearing to be conducted and arrangements could be made for an interpreter to assist them.[3]1816541 (Refugee) [2020] AATA 3476 (3 September 2020) at [6]; and 1820632 (Refugee) [2020] AATA 3477 (3 September 2020) at [5] per Deputy President Redfern. (Extract taken from Tribunal Ref: 1816541 at [6]).[4]“Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].”

Ratio Decidendi

Legal Principle Established

The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. Extracts of the relevant legislative provisions are attached to this decision below. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.President’s Direction I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:· that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and· that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2][1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).[2]At [8.1]. As noted above, I exercised the discretion to hold the first hearing by telephone in September 2020. Both hearings with the applicant were held during the COVID-19 pandemic. I determined that it was reasonable to hold the first hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I note that this practice accords with the observations of the Tribunal as constituted in the related cases Tribunal Refugee Refs: 1816541 and 1820632 as follows:[3]As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[4] In this case, I formed the view that the matter could proceed through MS Teams. Both applicants had good access to the internet, there were few documents to consider, there was a private place in their home for the hearing to be conducted and arrangements could be made for an interpreter to assist them.[3]1816541 (Refugee) [2020] AATA 3476 (3 September 2020) at [6]; and 1820632 (Refugee) [2020] AATA 3477 (3 September 2020) at [5] per Deputy President Redfern. (Extract taken from Tribunal Ref: 1816541 at [6]).[4]“Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].”