1730123 (Refugee) [2019] AATA 6488 (9 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1730123
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Brendan Darcy
DATE:9 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 August 2019 at 5:31pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party – failed asylum seeker – feared harm by People’s Alliance Supporters – inconsistent evidence – credibility issues – unreliable witness – fabricated claims for migration purposes – no real chance of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
CEA15 v MIBP & Anor [2017] FCCA 2699Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Nagalingam v MILGEA (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437MIMA v Prathapan (1998) 86 FCR 95
MIMA v Thiyagarajah (1998) 80 FCR 543
NAGV & NAGW v MIMIA (2005) 222 CLR 161
Osman v United Kingdom (1998) 29 EHRR 245
Prasad v MIEA (1985) 6 FCR 155
S1573 of 2003 v MIMIA [2005] FMCA 47
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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, who claims to be a citizen of Sri Lanka, applied for the visa on 4 December 2012 and the delegate refused to grant the visa on 16 December 2013.
The matter is before the Tribunal because of a Court order. The applicant validly applied to have the Tribunal’s decision made on 26 June 2015 (differently constituted) judicially reviewed.
On 27 October 2017, Justice Riley at the Federal Circuit Court remitted the matter to the Tribunal for re-determination. According to the written reason for the judgement, CEA15 v MIBP & Anor [2017] FCCA 2699, the remittal was on the basis that the Tribunal had made irrational or internally inconsistent findings.
On 30 November 2017, the Tribunal notified the applicant via his then representative that the Federal Circuit Court remitted the application for review.
The applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal hearing…
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CaseChat Overview and Summary
This matter concerned an application for a protection visa by a Sri Lankan national. The applicant claimed he feared harm upon return to Sri Lanka due to his political opinion as a supporter of the United National Party (UNP). He alleged he had been subjected to verbal abuse and physical assaults by supporters of the People’s Alliance (PA), the government party, particularly in relation to his involvement in local council elections. The applicant contended that the PA supporters sought to control the local fish market where he worked and viewed UNP supporters as a threat. He also asserted that the Sri Lankan authorities were unable to protect him. The decision under review was affirmed by the Tribunal.
The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically political opinion, such that he would be entitled to a protection visa. This required the Tribunal to assess the applicant's claims, the credibility of his evidence, and whether there was a real chance that he would suffer serious harm if returned to Sri Lanka, taking into account relevant country information and guidelines. The Tribunal was required to consider the consistency of the applicant's account and whether his claims were fabricated for migration purposes.
The Tribunal found significant credibility issues with the applicant's evidence. It noted the absence of a passport and the reliance on non-original copies of identification documents. Crucially, the Tribunal concluded that the applicant's claims of persecution were unreliable and likely fabricated for migration purposes. The Tribunal was not satisfied that the applicant had a genuine fear of harm, nor that there was a real chance of him suffering serious harm if returned to Sri Lanka. The Tribunal applied the principles of assessing claims for protection visas, including the assessment of credibility and the likelihood of harm, and found that the applicant had not discharged his burden of proof. The decision under review was affirmed.
The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically political opinion, such that he would be entitled to a protection visa. This required the Tribunal to assess the applicant's claims, the credibility of his evidence, and whether there was a real chance that he would suffer serious harm if returned to Sri Lanka, taking into account relevant country information and guidelines. The Tribunal was required to consider the consistency of the applicant's account and whether his claims were fabricated for migration purposes.
The Tribunal found significant credibility issues with the applicant's evidence. It noted the absence of a passport and the reliance on non-original copies of identification documents. Crucially, the Tribunal concluded that the applicant's claims of persecution were unreliable and likely fabricated for migration purposes. The Tribunal was not satisfied that the applicant had a genuine fear of harm, nor that there was a real chance of him suffering serious harm if returned to Sri Lanka. The Tribunal applied the principles of assessing claims for protection visas, including the assessment of credibility and the likelihood of harm, and found that the applicant had not discharged his burden of proof. The decision under review was affirmed.
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.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.CONSIDERATION OF CLAIMS AND EVIDENCE For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The following information was provided by the applicant in his submitted 866B and 866C forms at the time of application on 4 December 2012. The applicant claimed he was born on [a certain date] and that he is a citizen of Sri Lanka. No copies of the applicant’s passport were submitted. However there are non-original copies of his Sri Lankan birth certificate and national identification card on the Departmental file ([specified]). The applicant claimed that his religion is Catholic; that he belongs to the Sinhalese ethnicity or race; and that he speaks, reads and writes Sinhala. With regards to his family composition, the applicant’s parents [and siblings] remain in Sri Lanka, living in their home area of [City 1]. The applicant’s [siblings] are married. Furthermore he claimed not to be married, engaged or to have lived in a de facto relationship. He did not claim to have any children or dependents. The applicant claimed he was educated at the [Named] School, [completing] the equivalent of Year 11. From 2005 to September 2011 he was employed at the [City 1] fish market as a fish seller. Between 2005 and 2009 he worked for a man called [Mr A] and from 2009 he was self-employed. From September to December 2011 he went fishing with his [cousin]. From December 2011 to May 2012 he was not employed returning to the [City 1] fish market from May to June 2012. He was then unemployed until he departed for Australia in July 2012. The applicant claimed to have departed Sri Lanka by boat en route for Australia in July 2012. [In] July 2012, the applicant arrived in Australia as an irregular maritime arrival. The applicant was granted a bridging visa on 23 October 2012 before applying for a protection visa and was granted an associated bridging visa on the same day. Written claims for protection In his statutory declaration dated 4 December 2012 and attached to his Form 866, the applicant claimed that he is unable to return to Sri Lanka because of his political opinion, as a supporter of the United National Party (UNP). The applicant’s problems first started, it is claimed, in August 2010 in relation to the local council elections when he was assisting a candidate, [Mr B], who was with the UNP. He was assisting with the publicising of his campaign, including putting up posters and banners, going house to house distributing leaflets, canvassing, talking to people and persuading them to vote. He also attended party meetings for the election. [Mr B] was personally known to him and his friends were involved in the campaign. He wanted to help [Mr B] come to power so [Mr B] could assist him if he ever had problems with the police or for financial assistance if he needed it. His father was also a supporter of the UNP and encouraged him in his political activities. The majority of people in the fish market were supportive of the government party, the People’s Alliance (PA) and after the 2010 election he was verbally abused in the fish market for his support of the UNP. There was another election in October 2011 for town council and he worked for [Mr C] who was the UNP candidate. Again he was involved in distributing election propaganda, such as posters and banners and canvassing for votes. He worked on this campaign every day in the month leading up to the election. He would finish his work at 9am in the fish market, working on the election until the afternoon. [In] September 2011, at night, about eight people, including himself went to put up posters and a group of people started beating them. He did not recognise them but believes they are from the same village and this was later confirmed by [Mr C]. They had wooden poles with them and were hitting them with these poles, telling them not to put up posters. Three were severely injured and taken to hospital while the remaining 5, including himself, went to [Mr C]’s house where they stayed for two days. [Mr C] advised them not to go to the fish market and to stay at home because he could not guarantee their safety. He lodged a police complaint about the incident and the police discovered the identity of the men. The police discovered that it was supporters of [Mr D] who attacked them. [Mr D] secured bail for them and no further action against them was taken. He went to work with his cousin on his fishing boat. He ignored [Mr C]’s advice and in November 2011 he went to the fish market as he had to take the fish. He was beaten badly with a pole by PA supporters and [was] injured. He was taken to hospital. Out of fear he did not return to the fish market for four months and [Mr D]’s supporters would go to his house and threaten him. He needed to support himself so decided he had to go back to the fish market, but as soon as he returned he was told by PA supporters that he should not be at the market selling fish. He managed to stay for one month but then realised it was not possible to remain in the market. His parents advised him his only option was to leave Sri Lanka and he made plans to depart for Australia. On his arrival in Australia he found other UNP supporters from the same fish market had arrived here. If he returns to Sri Lanka he will continue to suffer harm from the PA supporters in his village. They will prevent him from earning a living as he has to go to the fish market as there is no other way for him to earn a living. It is important for the PA supporters to retain control of the fish market and they are threatened by the UNP supporters. The people in his village who have been supporting the UNP have not been able to have a normal life. He is unable to relocate as he has no financial support and it would not be possible for him to get a job. He has no money and all his family and support are in the village. The PA dominates Sri Lankan politics and if he relocates they will know and find him. The authorities cannot protect him as they took no action when he was beaten.
Decision
Reasons for decision
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The following information was provided by the applicant in his submitted 866B and 866C forms at the time of application on 4 December 2012. The applicant claimed he was born on [a certain date] and that he is a citizen of Sri Lanka. No copies of the applicant’s passport were submitted. However there are non-original copies of his Sri Lankan birth certificate and national identification card on the Departmental file ([specified]). The applicant claimed that his religion is Catholic; that he belongs to the Sinhalese ethnicity or race; and that he speaks, reads and writes Sinhala. With regards to his family composition, the applicant’s parents [and siblings] remain in Sri Lanka, living in their home area of [City 1]. The applicant’s [siblings] are married. Furthermore he claimed not to be married, engaged or to have lived in a de facto relationship. He did not claim to have any children or dependents. The applicant claimed he was educated at the [Named] School, [completing] the equivalent of Year 11. From 2005 to September 2011 he was employed at the [City 1] fish market as a fish seller. Between 2005 and 2009 he worked for a man called [Mr A] and from 2009 he was self-employed. From September to December 2011 he went fishing with his [cousin]. From December 2011 to May 2012 he was not employed returning to the [City 1] fish market from May to June 2012. He was then unemployed until he departed for Australia in July 2012. The applicant claimed to have departed Sri Lanka by boat en route for Australia in July 2012. [In] July 2012, the applicant arrived in Australia as an irregular maritime arrival. The applicant was granted a bridging visa on 23 October 2012 before applying for a protection visa and was granted an associated bridging visa on the same day. Written claims for protection In his statutory declaration dated 4 December 2012 and attached to his Form 866, the applicant claimed that he is unable to return to Sri Lanka because of his political opinion, as a supporter of the United National Party (UNP). The applicant’s problems first started, it is claimed, in August 2010 in relation to the local council elections when he was assisting a candidate, [Mr B], who was with the UNP. He was assisting with the publicising of his campaign, including putting up posters and banners, going house to house distributing leaflets, canvassing, talking to people and persuading them to vote. He also attended party meetings for the election. [Mr B] was personally known to him and his friends were involved in the campaign. He wanted to help [Mr B] come to power so [Mr B] could assist him if he ever had problems with the police or for financial assistance if he needed it. His father was also a supporter of the UNP and encouraged him in his political activities. The majority of people in the fish market were supportive of the government party, the People’s Alliance (PA) and after the 2010 election he was verbally abused in the fish market for his support of the UNP. There was another election in October 2011 for town council and he worked for [Mr C] who was the UNP candidate. Again he was involved in distributing election propaganda, such as posters and banners and canvassing for votes. He worked on this campaign every day in the month leading up to the election. He would finish his work at 9am in the fish market, working on the election until the afternoon. [In] September 2011, at night, about eight people, including himself went to put up posters and a group of people started beating them. He did not recognise them but believes they are from the same village and this was later confirmed by [Mr C]. They had wooden poles with them and were hitting them with these poles, telling them not to put up posters. Three were severely injured and taken to hospital while the remaining 5, including himself, went to [Mr C]’s house where they stayed for two days. [Mr C] advised them not to go to the fish market and to stay at home because he could not guarantee their safety. He lodged a police complaint about the incident and the police discovered the identity of the men. The police discovered that it was supporters of [Mr D] who attacked them. [Mr D] secured bail for them and no further action against them was taken. He went to work with his cousin on his fishing boat. He ignored [Mr C]’s advice and in November 2011 he went to the fish market as he had to take the fish. He was beaten badly with a pole by PA supporters and [was] injured. He was taken to hospital. Out of fear he did not return to the fish market for four months and [Mr D]’s supporters would go to his house and threaten him. He needed to support himself so decided he had to go back to the fish market, but as soon as he returned he was told by PA supporters that he should not be at the market selling fish. He managed to stay for one month but then realised it was not possible to remain in the market. His parents advised him his only option was to leave Sri Lanka and he made plans to depart for Australia. On his arrival in Australia he found other UNP supporters from the same fish market had arrived here. If he returns to Sri Lanka he will continue to suffer harm from the PA supporters in his village. They will prevent him from earning a living as he has to go to the fish market as there is no other way for him to earn a living. It is important for the PA supporters to retain control of the fish market and they are threatened by the UNP supporters. The people in his village who have been supporting the UNP have not been able to have a normal life. He is unable to relocate as he has no financial support and it would not be possible for him to get a job. He has no money and all his family and support are in the village. The PA dominates Sri Lankan politics and if he relocates they will know and find him. The authorities cannot protect him as they took no action when he was beaten.
Ratio Decidendi
Legal Principle Established
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