1809941 (Refugee) - [2022] AATA 2769

1809941 (Refugee) [2022] AATA 2769 (15 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809941
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Nicole Burns
DATE:15 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 June 2022 at 5:03pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political decision – Tamil imputed with involvement with LTTE – relative with links to another Tamil political party killed – applicant last to see him alive and accused of killing him or knowing who did – detained, interrogated and tortured – continued harassment of applicant until departure and family since – participation in protests and commemorations in Australia not for sole reason of strengthening claims – detailed, consistent and credible evidence – country information – economic and political conditions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIMA v Haji Ibrahim (2000) 204 CLR 1
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 Immigration and Border Protection 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 5 December 2012, and the delegate refused to grant the visa on 6 January 2014. He sought review of that decision and the Tribunal (differently constituted) affirmed the Department’s decision on 28 January 2016. Following an appeal from the Federal Circuit Court of Australia (FCCA)[1] where the first Tribunal’s decision was upheld, the FCCA matter was remitted to the Tribunal for reconsideration by orders of the Federal Court of Australia (FCA) on 27 February 2018.[2]
[1] AJQ16 v Minister for Immigration and Border Protection [2017] FCCA 661.
[2] AJQ16 v Minister for Immigration and Border Protection [2018] FCA 244.
The applicant appeared before the Tribunal on 6 April 2022 where he gave evidence and presented arguments about the issues in his case. The Tribunal also received oral evidence from a Member of Parliament (MP) in Sri Lanka, [Mr A], over the telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The issue in this review is whether the applicant has a well-founded fear of being…

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.

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Details

Case: [2022] AATA 2769
Decision Date: 15 June 2022

CaseChat Overview and Summary

The applicant, a Tamil male from northern Sri Lanka, sought a protection visa, claiming fear of persecution by Sri Lankan authorities. His fear stemmed from his ethnicity, suspicion of involvement with the Liberation Tigers of Tamil Eelam (LTTE), and his alleged knowledge of the perpetrators of his relative's murder. The applicant asserted he was detained, interrogated, and tortured by security forces investigating the murder, and that his family in Sri Lanka continued to be harassed. He also claimed that his participation in protests and commemorations in Australia would increase his risk upon return. The Federal Court remitted the matter for reconsideration.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution, thereby satisfying the criterion for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth). This required the court to assess the credibility and consistency of the applicant's claims, consider the provided documentary evidence, and evaluate the country information regarding the economic and political conditions in Sri Lanka, particularly concerning Tamils from the north. The court also had to determine if the applicant's activities in Australia, such as participating in protests, were undertaken solely to strengthen his protection claims.

The court found the applicant's evidence to be detailed, consistent, and credible. It considered the documentary evidence, including identity documents, educational records, and documents pertaining to his relative's death, such as a death certificate and a police letter. The court also took into account the applicant's ongoing contact with his family in Sri Lanka and the continued inquiries about him by authorities. After reviewing the available country information and the applicant's submissions, the court was satisfied that Australia had protection obligations towards the applicant under the Refugees Convention.

Consequently, the court remitted the matter for reconsideration with a direction that the applicant satisfies s 36(2)(a) 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

At hearing the applicant confirmed his parents and [siblings] ([brothers] and [sisters]) have remained living in northern Sri Lanka. He is in regular contact with them. Presently he is single, lives with friends in Melbourne and works full time in a [workplace]. Claims, evidence, and findings In summary, the applicant claims to fear persecution from the Sri Lankan authorities as a young Tamil male from the north, as someone suspected of being involved with the Liberation Tigers of Tamil Eelam (LTTE), and because he is suspected of knowing who was responsible for the murder of his relative – [Mr B] – [Date 1] October 2006, allegedly by the LTTE in [City 1]. He claims to have been subject to detention, interrogation and mistreatment at the hands of the security forces (police and army) investigating [Mr B]’s murder from October 2006 until he left the country in 2012. He claims the authorities have continued to enquire about him with his parents in [City 1]. Before the current Tribunal, the applicant indicated he has been active in Australia protesting against the Sri Lankan government, and attending Tamil commemoration events, which will add to his risk profile on return. The applicant’s initial claims were set out in a statutory declaration provided to the Department dated 29 November 2012. Material provided to the Department included various identity documents, documents pertaining to the applicant’s education in Sri Lanka and a copy of his marine fishing pass and identity card. Additionally, the applicant provided documents relating to [Mr B]’s death, including a copy of his death certificate,[3] a post-mortem report and post-mortem examination instructions, and a letter from the police in [Town 2] to the Human Rights Commission office in [City 1] about the matter. The applicant also provided a copy of a letter from the Divisional Secretary, [Town 2], to the Divisional Secretary, [Division], dated 20 September 2012 confirming that ‘[Mr B]’ was shot dead by unknown persons on [Date 1]-10-2006 and that he was [a relative]. At hearing the applicant explained he received these documents from a relative in Sri Lanka, who was also a close relative of [Mr B], when he was in Australia. [3] Recording the date and place of death as [Date 1] October 2006, [Road], [Town 2], at the age of [Age], due to ‘shock and haemorrhage caused by gun shot injuries to brain’. The Departmental file also contains copies of what appear to be newspaper articles in Tamil and what looks like information pertaining to a wake or funeral for [Mr B]; however, as they are untranslated, the Tribunal is unsure about what information is contained in them specifically. The applicant (and his then representative) provided several submissions[4] and documents in support of his protection visa application to the first Tribunal, including medical reports pertaining to his physical and mental health at that time.[5] The submission refers to country information contained in DFAT’s country information report on Sri Lanka in place at the time, now superseded (several times[6]), as well as from other sources. [4] Dated 6 February 2014, 19 March 2015 and 30 March 2015.[5] A letter from [Dr C], [Medical] Practice dated 5 March 2015; a letter from [Dr D], Generalist psychologist dated 23 November 2015; a copy of a prescription for Pristiq (anti-depressant), [City 2], dated 27 March 2015; and handwritten medical reports (and scripts) from Sri Lanka dated 4 September 2010 showing investigations for abdominal pain. [6] The previous DFAT reports are dated: 4 November 2019, 23 May 2018, 24 January 2017, 18 December 2015, 16 February 2015, 3 October 2014 and 31 July 2013.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Nicole BurnsMember

Ratio Decidendi

Legal Principle Established

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