1805931 (Refugee) - [2023] AATA 2502

1805931 (Refugee) [2023] AATA 2502 (19 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:   Mr Joshua Le Vay
CASE NUMBER:        1805931
COUNTRY OF REFERENCE:         Sri Lanka
MEMBER:Andrew McLean Williams
DATE:19 May 2023
PLACE OF DECISION:       Brisbane
DECISION:The Tribunal affirms the decision not to grant the Applicants protection visas.

Statement made on 19 May 2023 at 11:51am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE) – Tamil National Alliance campaign worker – particular social group – failed asylum seeker – weapons charges – detention – killing of work colleagues – abductions in white vans – informant for the LTTE – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 35
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DAT17 v MIBP [2018] FCCA 3750
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
MIAC v SZQRB (2013) 210 505
SZSMQ v MIBP [2013] FCCA 1768

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

This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 16 February 2018, thereby refusing to grant the Applicants protection visas, pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicants, who are each citizens of Sri Lanka, had applied for the visas on 15 June 2017. For purposes of this review Sri Lanka is now the receiving country in relation to the Applicants’ protection claims.
The Delegate refused to grant the visas after determining that the first-named Applicant, [named] is not a person to whom Australia owes protection obligations, as outlined in either of s.36(2)(a), or s.36(2)(aa) of the Act; and is not a member of the same family unit as another person to whom Australia already owes protection obligations under either of those provisions, and who already holds a protection visa of the same class as that now being applied for by [the applicant] (s.36(2)(b) & s.36(2)(c)).
Given the findings in relation to the first-named Applicant, the Delegate then determined that the other Applicants, as family members of [the applicant], did not satisfy s.36(2)(b), or s.36(2)(c) of the Act.
The second-named Applicant, [named] made her own protection claims on 15 June 2017. These were also determined, by the same Delegate on 16 February 2018, yet by means of a separate decision, in which the Delegate determined that [the applicant’s wife] was not a person to whom Australia owed protection obligations under either of s.36(2)(a) or s.36(2)(aa)…

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 1805931 (Refugee)

Details

AGLC: 1805931 (Refugee) [2023] AATA 2502
Case: [2023] AATA 2502
Decision Date: 19 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant from Sri Lanka seeking a protection visa. The applicant claimed to fear persecution due to his race (Tamil) and an imputed political opinion, specifically suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE) and his work as a Tamil National Alliance campaign worker. The Tribunal also considered whether the applicant belonged to a particular social group. The applicant's account of events, including alleged abductions and weapons charges, was under review.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for a Convention reason, as required by the Migration Act 1958 (Cth) for the grant of a protection visa. This involved assessing the applicant's credibility, the plausibility of his claims, and whether effective protection was available in Sri Lanka. The Tribunal also had to determine if any conduct by the applicant in Australia should be disregarded when assessing his fear of persecution.

The Tribunal applied the principles outlined in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, cautioning that the benefit of the doubt should only be given when all evidence has been obtained and checked, and the examiner is satisfied as to the applicant's general credibility. The Tribunal found itself not satisfied as to the applicant's general credibility, noting a propensity to embellish claims. Crucially, the Tribunal found that a key claim regarding visits to his wife's mother's home and shop in Sri Lanka after a data disclosure on a Departmental website in Australia had not been established to its reasonable satisfaction. The Tribunal concluded that the disclosed data was limited and did not provide a basis to infer that Sri Lankan authorities were aware of the substance of the applicant's asylum claims.

Consequently, the Tribunal concluded that the applicant did not satisfy the criterion in s 36(2)(aa) of the Migration Act for a protection visa on complementary protection grounds. As a result, the other named applicants, as family members, also failed to satisfy the relevant criteria. The Tribunal affirmed the decision not to grant the protection visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Similarly, the Tribunal notes that, generally, if the Applicant’s account appears credible, then it ought, unless there are good reasons to the contrary, be given the benefit of the doubt, and be accepted. However, in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) at paragraph [204], the UNHCR cautions that:“….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…” [emphasis not in the original, yet included here, by the Tribunal]. The Tribunal records that it is not satisfied as to [the applicant’s] general credibility, and considers that he has shown a propensity to embellish his claims. Moreover, evidence that is clearly and logically relevant to an assessment of the key facts in issue – in the form of a direct eyewitness account from [the applicant’s mother-in-law] - has not been provided by the Applicants; such that the Tribunal is unable to move beyond its current state of dissatisfaction regarding these claims. The Tribunal is not required to accept the Applicant uncritically, nor even to have rebutting evidence available to it before it can find that any particular assertion by an Applicant has not been made out. The Tribunal accordingly records that it finds that [the applicant’s] particular claim – regarding visits to the home and shop of the mother of [the applicant’s wife] in Sri Lanka after the inadvertent disclosure of the Applicant’s details on a Departmental website in Australia in 2014 has not, as a matter of evidence, been established to the Tribunal’s reasonable satisfaction. SZSMQ v MIBP [2013] FCCA 1768 at [58] – [60]; and DAT17 v MIBP [2018] FCCA 3750 at [30] - [31]. As such the Tribunal makes no express findings in relation to this claim, other than to indicate that the Tribunal remains in a state wherein it is unable to be affirmatively satisfied regarding the factual basis of it. Moreover, the extent of any dissemination of data in consequence of the website disclosure is speculative.[7] The details that are known to have been disclosed consisted only of name, date of birth, nationality, gender, details about location of immigration detention in Australia, and whether there were other family members also being held in detention. The disclosed details did not extend to including information regarding the substance of any protection claims. Although Sri Lankan authorities may now be aware of the fact of the Applicants being in Australia, and of their having arrived in Australia by irregular maritime means; and may have deduced the fact of their having made asylum claims, there is no basis to infer that the Sri Lankan authorities are aware of the actual substance of any of [the applicant’s] asylum claims. [7] Department of Home Affairs Country of Origin Information Services Section (‘COISS’) Standard ‘Q & A’ Report, 28 April 2023, Analysis regarding question 2: Are there any reports that the SLG became aware of the data breach, or has referred to it as a basis for adverse attention?

Decision

Reasons for decision

For the reasons now given, the Tribunal concludes that [the applicant] does not satisfy the criterion set out in s.36(2)(aa) of the Migration Act now necessary in order to qualify for a protection visa on complimentary protection grounds. It follows therefore that the other named Applicants, as family members of [the applicant], are unable to satisfy the criterion set out in s.36(2)(b), or in s.36(2)(c), and also cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the Applicants protection visas. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is: For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a): Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph: In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if: A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if: Protection visas – criteria provided for by this Act A criterion for a protection visa is that the applicant for the visa is:

Ratio Decidendi

Legal Principle Established

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