1812822 (Refugee) - [2023] AATA 3618

1812822 (Refugee) [2023] AATA 3618 (3 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chellappah Ambikaipalan (MARN: 9905055)
CASE NUMBER:  1812822
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Shahyar Roushan
DATE:3 August 2023
PLACE OF DECISION:  Sydney
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 03 August 2023 at 12:41pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnic Tamil – imputed political opinion – active Tamil National Alliance (TNA) member – opposed the Pillayan group (also known as Tamil Makkal Viduthalai Pulikal (TMVP) or the Karuna group) – visible scars – imputed LTTE links and anti-government sentiments – failed asylum seeker – illegal departure from Sri Lanka – participation in Tamil commemorative events in Australia – physical and mental health issues – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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
BACKGROUND

The applicant is a [age]-year-old national of Sri Lanka. He is of Tamil ethnicity and a Hindu. He arrived in Australia [in] June 2012 as an Irregular Maritime Arrival (IMA) and lodged an application for a protection visa on 19 November 2012.
On 11 September 2013, a delegate of the Minister refused to grant a protection visa under

s 65 of the Migration Act 1958 (Cth) (the Act) and the applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal.
On 26 March 2015, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.
On 17 April 2015, the applicant applied to the then Federal Circuit Court of Australia for a review of the first Tribunal’s decision. [In] 2017, the Court dismissed the application and the applicant applied to the Federal Court of Australia. [In] 2018, the Federal Court of Australia quashed the first Tribunal’s decision and remitted the matter for redetermination according to law.
The matter is now before the presently constituted Tribunal (the Tribunal) for reconsideration.
CLAIMS AND EVIDENCE
Entry interview
Soon after he arrived in Australia, the applicant attended an Entry Interview with the Department on 2 August 2012. At that interview, he described the incidents prompting his departure from Sri Lanka. The applicant expanded upon these claims in written and oral evidence subsequently provided to the Department and in support of his review application, as detailed below.
Protection visa application
According to his protection visa application, the applicant was born in [Town 1], Batticaloa and predominantly resided in the Eastern Province of Sri Lanka. He completed 10 years of schooling and worked in various occupations before travelling to Australia. The applicant’s wife, his [number]…

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 1812822 (Refugee)

Details

AGLC: 1812822 (Refugee) [2023] AATA 3618
Case: [2023] AATA 3618
Decision Date: 3 August 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Sri Lankan national of ethnic Tamil background. The applicant claimed to have been actively involved with the Tamil National Alliance (TNA), an organisation opposed to the Pillayan group (also known as the Tamil Makkal Viduthalai Pulikal or the Karuna group). He alleged that he had received threats and experienced violence due to his political activities and opposition to the Pillayan group, leading to his departure from Sri Lanka and subsequent arrival in Australia. The Federal Court had previously remitted the decision under review to the Administrative Appeals Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth), specifically for imputed political opinion. This required the Tribunal to assess the credibility of the applicant's claims regarding his political activities, the threats he allegedly received, and the risk of harm he faced upon return to Sri Lanka, particularly in light of his opposition to the Pillayan group and any imputed links to the LTTE or anti-government sentiments. The Tribunal also had to consider the impact of his participation in Tamil commemorative events in Australia and his physical and mental health issues.

The Tribunal was required to determine if the applicant's fear of persecution was well-founded, considering the evidence presented, including his account of events in Sri Lanka, his involvement with the TNA, and the threats he claimed to have received. The Tribunal needed to assess whether the imputed political opinion, based on his TNA membership and opposition to the Pillayan group, would place him at real risk of serious harm if returned to Sri Lanka. The Tribunal's reasoning would involve weighing the applicant's testimony against other available country information and assessing the credibility of his claims, including the alleged damage to his property and the threats to his life.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The matter is now before the presently constituted Tribunal (the Tribunal) for reconsideration. CLAIMS AND EVIDENCE Entry interview Soon after he arrived in Australia, the applicant attended an Entry Interview with the Department on 2 August 2012. At that interview, he described the incidents prompting his departure from Sri Lanka. The applicant expanded upon these claims in written and oral evidence subsequently provided to the Department and in support of his review application, as detailed below.Protection visa application According to his protection visa application, the applicant was born in [Town 1], Batticaloa and predominantly resided in the Eastern Province of Sri Lanka. He completed 10 years of schooling and worked in various occupations before travelling to Australia. The applicant’s wife, his [number] children and his siblings continue to reside in Sri Lanka. In a statement accompanying his protection visa application, the applicant made the following claims. He grew up in [Town 1], but also spent ‘some years’ in [City 1]. His father is retired, and his mother has passed away. He is married and has [number] children. Before coming to Australia, he worked in ‘[specified industry]’. His family have been involved in politics for a ‘very long time’. He became interested in politics at the age of 20 after his uncle won the provincial elections. However, it was not until 2010 when he became ‘more actively’ involved in politics by supporting the Tamil National Alliance (TNA), which advocates for the rights of the Tamil people. He organised and attended rallies, spoke ‘in front of crowds’, went door knocking and took on a ‘marketing role’, preparing posters and sending out fliers. During the election campaign in 2010, he was returning from a conference when members of the opposition party damaged his motorbike and broke the windows of his house. ‘Fights’ between opposing parties were ‘common… during such times’. On 27 May 2012, he was invited to attend a conference to discuss the upcoming provincial elections, which were scheduled to be held on 13 August 2012. On the evening before the conference, the applicant received a phone call, warning him that he would be ‘shot and killed’ if he attended the event. He informed the party leader, who told him not to worry and insisted that the applicant should attend. During the conference, a group of men arrived at the venue and began to damage property and broke the windscreen of a bus. Despite this disruption, the conference continued, and the applicant was put in charge of marketing for the election and coordinating rallies for the area. Later that night, he was in the backyard of his home working when two armed men came to his house searching for him. His wife told them that he was not home, but they forced their way in. The applicant, however, was able to escape through the back fence and fled to a temple. He was subsequently taken to Batticaloa by his brother.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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