1804989 (Refugee) - [2021] AATA 639

1804989 (Refugee) [2021] AATA 639 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1804989
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Jason Pennell
DATE:1 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 1 March 2021 at 10.36am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political opinion – brother conscripted by Tamil Tigers and missing believed dead since end of war – applicant living in internally displaced persons camps because of war and tsunami – abuse, forced menial labour, questioning and beating by soldiers and CID – fear of forced recruitment by Tamil Tigers – member of particular social group – failed asylum seeker – mental health – credibility – vague evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(5), 36(2), 65, 91R(1)(a), 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Y [1998] FCA 515
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
SZQPA v Minister for Immigration [2012] FMCA 123
Welivita v MIEA (unreported, Federal Court of Australia, Lindgren J, 18 November 1996)
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 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 6 November 2012 and the delegate refused to grant the visa on 8 July 2013. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act.
3.The applicant lodged an application for review of the delegate’s decision to the Refugee Review Tribunal (the RRT) on 15 July 2013. The RRT[1]affirmed the delegate’s decision on 13 January 2015.
[1] RRT Case No 1309841
4.The applicant lodged…

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 1804989 (Refugee)

Details

AGLC: 1804989 (Refugee) [2021] AATA 639
Case: [2021] AATA 639
Decision Date: 1 March 2021

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear persecution based on his ethnicity and imputed political opinion, stemming from his brother's alleged conscription by the Tamil Tigers and subsequent disappearance. The applicant had resided in internally displaced persons camps due to the conflict and a tsunami, and alleged he had experienced abuse, forced labour, questioning, and beatings by soldiers and the Criminal Investigation Department (CID). He also expressed a fear of forced recruitment by the Tamil Tigers.

The Federal Court was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically ethnicity and imputed political opinion, or whether he belonged to a particular social group. The court also had to consider the applicant's credibility, the weight to be given to his evidence, and the relevance of country information concerning Sri Lanka. The applicant's mental health was also a factor to be taken into account in assessing his claims.

The court affirmed the primary decision, finding that the applicant had not established a well-founded fear of persecution for a Convention reason. While acknowledging the applicant's difficult experiences, the court found his evidence to be vague and lacking in sufficient detail to establish the necessary nexus between his alleged fear and a Convention ground. The court also considered the country information and concluded that it did not support the applicant's claims to the extent required for a protection visa. The court ultimately affirmed the decision under review.

Orders