1805797 (Refugee) - [2022] AATA 5112

1805797 (Refugee) [2022] AATA 5112 (28 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805797
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:James Lambie
DATE:28 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 November 2022 at 12:21pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – abducted by Criminal Investigations Department (CID) officers – white van abductions – extortion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton 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
SZSPT v MIBP [2014] FCA 1245
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 Home Affairs on 28 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 20 June 2017. 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 under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The applicant appeared before the Tribunal on 1 March and 14 April 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.
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 is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who…

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 1805797 (Refugee)

Details

AGLC: 1805797 (Refugee) [2022] AATA 5112
Case: [2022] AATA 5112
Decision Date: 28 November 2022

CaseChat Overview and Summary

This matter concerned an application for a temporary protection visa by a Sri Lankan national of Tamil ethnicity. The applicant claimed to have been detained and interrogated by Criminal Investigations Department (CID) officers in May 2011, during which he was allegedly assaulted and extorted for money. He feared he would be targeted by Sri Lankan authorities if returned. The applicant had previously applied for a permanent protection visa, which was refused, then remitted by the Refugee Review Tribunal, and subsequently refused again on other grounds. He later applied for a temporary protection visa, which was also refused, leading to the current merits review.

The primary legal issues before the Tribunal were whether the applicant met the refugee criterion under s 36(2)(a) of the Act, and if not, whether he was entitled to complementary protection under s 36(2)(aa). The Tribunal was required to consider the applicant's claims of past persecution and his fear of future harm, in light of relevant country information and departmental guidelines, including Ministerial Direction No. 84.

The Tribunal affirmed the delegate's decision to refuse the visa. While acknowledging the applicant's claims of detention and mistreatment by the CID, the Tribunal did not find that these events established a well-founded fear of persecution for a Convention reason, nor did it conclude that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal applied the principles of refugee law and complementary protection, considering the evidence presented and the relevant legislative criteria. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year-old national of Sri Lanka. He is of Tamil ethnicity. The applicant first arrived in Australia [in] May 2012 and he has remained onshore since. On 15 September 2012, the applicant applied for a permanent protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 25 October 2012. On 27 March 2013, the Refugee Review Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act. On 4 February 2014, the applicant’s permanent protection visa was refused by a delegate of the Minister for Home Affairs as he had failed other criteria for the grant of the visa. On 20 June 2017, the applicant, by invitation from the Department, applied for a temporary protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 28 February 2018. On 5 March 2018, the applicant applied for merits review of the delegate’s decision to refuse his application for a temporary protection visa. Claims: The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision. The applicant claims that from 1998 to 2012, he worked as a transport truck driver delivering fish and goods between [locations]. The applicant claims that in May 2011, whilst delivering fish to a [market], he was detained by the Criminal Investigations Department (CID) for a period of three days. He claims the CID blindfolded him, took him to a house and locked him in a room with metal bars across the window. He claims he was released after he paid 50,000 rupees, which were funds he received after his wife sold their home. The applicant claims the CID told him that they detained him because they suspected that he was transporting [goods] for the Liberation Tigers of Tamil Eelam (LTTE), and he was poor. He claims they interrogated him and asked him what he knew of the Tamil areas. He claims they accused him of transporting goods for the LTTE. He claims the CID officers punched and slapped him during the interrogation. The applicant claims he then returned to work for the transport company for a further year before he was able to depart Sri Lanka. He claims that during this time the CID visited his home a further four times, however as he was away for work, he did not have any further contact with them. The applicant fears he would be targeted by the Sri Lankan authorities if he returned to Sri Lanka.Evidence: The Tribunal has before it a range of material, including, relevantly:(a)the applicant’s protection visa application forms, which were lodged on 20 June 2017;(b)the applicant’s identity documents provided to the Department, being a copy of his Sri Lankan national identity card, Sri Lankan driver licence, Sri Lankan birth certificate and marriage certificate; (c)the protection visa decision record dated 28 February 2018 (delegate’s decision); (d)the application for review form dated 5 March 2018, which included a copy of the delegate’s decision; (e)Department file [number] concerning the applicant’s protection visa application, which includes all documents submitted by the applicant in support of his protection visa application, including a statutory declaration from the applicant which was sworn on 15 September 2012; and(f)country information on Sri Lanka, as set out below. Country of reference:

Evidence

Evidence Before The Court

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.CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year-old national of Sri Lanka. He is of Tamil ethnicity. The applicant first arrived in Australia [in] May 2012 and he has remained onshore since. On 15 September 2012, the applicant applied for a permanent protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 25 October 2012. On 27 March 2013, the Refugee Review Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act. On 4 February 2014, the applicant’s permanent protection visa was refused by a delegate of the Minister for Home Affairs as he had failed other criteria for the grant of the visa. On 20 June 2017, the applicant, by invitation from the Department, applied for a temporary protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 28 February 2018. On 5 March 2018, the applicant applied for merits review of the delegate’s decision to refuse his application for a temporary protection visa. Claims: The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision. The applicant claims that from 1998 to 2012, he worked as a transport truck driver delivering fish and goods between [locations]. The applicant claims that in May 2011, whilst delivering fish to a [market], he was detained by the Criminal Investigations Department (CID) for a period of three days. He claims the CID blindfolded him, took him to a house and locked him in a room with metal bars across the window. He claims he was released after he paid 50,000 rupees, which were funds he received after his wife sold their home. The applicant claims the CID told him that they detained him because they suspected that he was transporting [goods] for the Liberation Tigers of Tamil Eelam (LTTE), and he was poor. He claims they interrogated him and asked him what he knew of the Tamil areas. He claims they accused him of transporting goods for the LTTE. He claims the CID officers punched and slapped him during the interrogation. The applicant claims he then returned to work for the transport company for a further year before he was able to depart Sri Lanka. He claims that during this time the CID visited his home a further four times, however as he was away for work, he did not have any further contact with them.

Decision

Reasons for decision

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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.CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background: The applicant is a [age]-year-old national of Sri Lanka. He is of Tamil ethnicity. The applicant first arrived in Australia [in] May 2012 and he has remained onshore since. On 15 September 2012, the applicant applied for a permanent protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 25 October 2012. On 27 March 2013, the Refugee Review Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act. On 4 February 2014, the applicant’s permanent protection visa was refused by a delegate of the Minister for Home Affairs as he had failed other criteria for the grant of the visa. On 20 June 2017, the applicant, by invitation from the Department, applied for a temporary protection visa. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 28 February 2018. On 5 March 2018, the applicant applied for merits review of the delegate’s decision to refuse his application for a temporary protection visa. Claims: The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision. The applicant claims that from 1998 to 2012, he worked as a transport truck driver delivering fish and goods between [locations]. The applicant claims that in May 2011, whilst delivering fish to a [market], he was detained by the Criminal Investigations Department (CID) for a period of three days. He claims the CID blindfolded him, took him to a house and locked him in a room with metal bars across the window. He claims he was released after he paid 50,000 rupees, which were funds he received after his wife sold their home.