1729305 (Refugee)

Case [2019] AATA 6331

1729305 (Refugee) [2019] AATA 6331 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729305

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Antoinette Younes

DATE:31 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 31 July 2019 at 4:52pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion –  Liberation Tigers of Tamil Eelam (LTTE) sympathiser – particular social group – Tamils who left Sri Lanka illegally – failed asylum seeker – Western returnee – assaulted by military – physical disability – mental health – psychological vulnerability – no involvement or association with LTTE – routine use of torture and coercion – risk of harm if detained by security services – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

A v MIMA [1999] FCA 116
A99 of 2003 v MIMIA [2004] FCA 773
Koe v MIMA (1997) 74 FCR 508
MIMA v Gnanapiragasam (1998) 88 FCR 1
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Respondents S152/2003 (2004) 222 CLR 1

MIMA v Thiyagarajah (1998) 80 FCR 543

MZRAJ v MIMIA [2004] FCA 1261

MZYQU v MIAC [2012] FCA 1032
NASJ v MIMIA [2005] FMCA 124
Osman v United Kingdom (1998) 29 EHRR 245
Prathapan v MIMA (1998) 47 ALD 41.
S1573 of 2003 v MIMIA [2005] FMCA 47
SZBBE v MIMIA [2004] FMCA 753
SZBBE v MIMIA [2005] FCA 264
SZCAL v MIAC [2008] FMCA 330
SZGHC v MIAC [2007] FMCA 570
SZOET v MIAC [2010] FMCA 483
SZSFS v MIBP [2015] FCA 534

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 and Border Protection 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 20 December 2012 and the delegate refused to grant the visa on 27 February 2014. The applicant sought review of the delegate’s decision and the Tribunal (differently constituted) affirmed the delegate’s decision. On judicial review, the matter was remitted to the Tribunal on 17 November 2017.

  3. The applicant appeared before the Tribunal on 10 May 2019 to give evidence and present arguments. Further submissions were received post-hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

  4. The applicant was represented in relation to the review by his registered migration agent.

    RELEVANT LAW

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AGLC
1729305 (Refugee) [2019] AATA 6331
Case
[2019] AATA 6331
Decision Date

CaseChat Overview and Summary

The applicant, a Sri Lankan citizen of Tamil ethnicity, sought a protection visa. He claimed to have fled Sri Lanka in June 2012 due to harassment and assault by Sri Lankan navy officers while working as a fisherman, and subsequent fear of abduction by unidentified individuals in white vans, which he believed were government-sanctioned. He asserted that if returned to Sri Lanka, he would face harm from the Sri Lankan army and government due to his ethnicity, his former residence in an LTTE-supporting area, and his unlawful departure from the country. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa.

The primary legal issue before the AAT was whether the applicant had established a well-founded fear of persecution or harm if returned to Sri Lanka, thereby satisfying the requirements for a protection visa under the Migration Act 1958 (Cth). Specifically, the Tribunal had to consider whether the applicant's claims of past harm and future risk constituted a fear of persecution based on his race, imputed political opinion, or membership in a particular social group, as defined by the Refugee Convention and Australian law. The Tribunal also had to assess the credibility of the applicant's claims and the objective country information relevant to his situation.

The Tribunal found that the applicant did not meet the refugee criterion under s 36(2)(a) of the Act. However, it was satisfied that the applicant met the alternative criterion under s 36(2)(aa), which relates to complementary protection. This conclusion was reached after considering the applicant's evidence of past harassment and fear of future harm, alongside relevant country information. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies s 36(2)(aa) 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

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to have regard to the ‘Refugee Law Guidelines’ and the ‘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 they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE In support of his application for a protection visa, the applicant provided a statement signed on 17 December 2012 in which he made the following claims:i) He is a Sri Lankan citizen, Hindu of Tamil ethnicity. He fled Sri Lanka in June 2012 to seek protection in Australia.ii) He was working as a fisherman in 2006 in [Village 1], Sri Lanka. He suffered harassment from Sri Lankan navy officers whilst working as a fisherman. The harassments were mostly in the form of verbal abuse and insults, physical assaults and repeated requests for producing the fishing permit.iii) In May 2007, he was out in the sea at night when a navy boat turned up with two navy officers on board. They asked him to produce his fishing permit but he was not carrying it at that time. One of them started insulting him and hitting him with a metal rod. They aimed at hitting him in the head but he raised his arm to protect himself. The metal rod hit his [arm] and caused a fracture and he still has a scar on his arm as a result. They kept hitting him and left him with severe injuries. He sought treatment and could not return to work for a number of months. After that incident, he was very fearful about continuing to work as a fisherman.iv) In or about July 2008, unidentified people started to abduct persons from his village in white vans. Almost 15 young Tamil boys went missing and their families asked the authorities to investigate the incident but they did not receive a response. The government was responsible for the abductions because they suspected young Tamil males to be supporters or members of the LTTE.v) Those incidents caused him further harm. He was very scared that the same could happen to him. The abductions continued in Sri Lanka and he spent most of his time in the house to avoid the risk of being abducted by the white vans because he is a young Tamil man. He fled Sri Lanka in June 2012 to seek protection and save his life.vi) If he were to return to Sri Lanka, he would be harmed by the Sri Lankan army and the Sri Lankan government. This would happen to him because he is a young Tamil man and the Sinhalese authorities would harm him. Furthermore, he was living in an area which had supported the LTTE for a long time which exacerbated his fear of harm. He has also left unlawfully and would be treated as a member of the LTTE. The authorities cannot protect him. As a Tamil, he would be suspected of being a traitor by the authorities who would accuse him of divulging information to a foreign government. He would therefore be tortured. He cannot relocate to any other part of Sri Lanka.

Decision

Reasons for decision

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 is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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