1831263 (Refugee) - [2023] AATA 4319

1831263 (Refugee) [2023] AATA 4319 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831263
CASE NUMBER:  2308440
REPRESENTATIVE:  Mr Joshua Le Vay
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Luke Hardy
DATE:11 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the respective decisions not to grant the respective applicants protection visas.

Statement made on 11 September 2023 at 2:29pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) member – ethnicity – Tamil – victim of sexual assault – risk of gender-based sexual violence – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a family of four. They are all citizens of Sri Lanka.
[The first named applicant], the husband, first arrived in Australia [in] April 2016. He carried a student visa valid to 20 September 2018. He departed for Sri Lanka on [date] January 2017 and re-entered Australia on [date] January 2017.
[The second named applicant] and the daughter [the third named applicant] applied for and were issued Student visas as dependants on 14 February 2017 after [the first named applicant] had already returned to Australia. These were granted on 23 May 2017 and the two arrived in Australia on [date] May 2017.
All three of the above departed for Sri Lanka on [date] February 2018 and re-entered Australia on [date] February 2018.
Two months later, on 1 May 2018, the first three applicants jointly lodged a PV application. [The first named applicant] and [the second named applicant] were interviewed by the delegate on 30 August 2018. The delegate refused to grant the visas on credibility grounds on 16 October 2018.
[The first named applicant]’s and [the second named applicant]’s second child, [the fourth named applicant], was born shortly afterwards. They lodged a separate application in his name.
[The first named applicant] and [the second…

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 1831263 (Refugee)

Details

AGLC: 1831263 (Refugee) [2023] AATA 4319
Case: [2023] AATA 4319
Decision Date: 11 September 2023

CaseChat Overview and Summary

The case concerned two applicants seeking protection visas in Australia. The primary dispute revolved around whether the applicants had established a well-founded fear of persecution or serious harm in Sri Lanka, either on refugee grounds or complementary protection grounds. The decision was made by the Tribunal, presided over by Luke Hardy.

The Tribunal was required to determine if either applicant met the criteria for a protection visa. This involved assessing the credibility of their claims, considering the evidence presented, and applying relevant legal guidelines and country information. Specifically, the Tribunal had to consider whether the first applicant's alleged past involvement with the Liberation Tigers of Tamil Eelam (LTTE) and the second applicant's alleged experiences of sexual coercion and threats from a former LTTE commander placed them at risk of persecution or harm upon return to Sri Lanka.

The Tribunal concluded that the decision under review should be affirmed, meaning the applicants' claims were not accepted. While acknowledging the applicants' stated fears and the general country information regarding persecution in Sri Lanka, the Tribunal found issues with the accepted evidence and the credibility of the claims. The Tribunal considered the applicants' statements, including the first applicant's account of his alleged involvement with the LTTE and subsequent fear of reprisal, and the second applicant's account of unwanted advances and threats from a figure named Karuna. However, the Tribunal ultimately found that the evidence did not establish a well-founded fear of persecution or harm that would warrant the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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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 EVIDENCEThe issues The key issue in this case is whether, on accepted evidence, any of the applicants is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims to the former Immigration Department (the Department) [The first named applicant] and [the second named applicant] made individual statements of claims on 12 April 2018. Useful summaries of the respective applicants’ claims appear in the two primary decision records. The following is a summary of [the first named applicant]’s claims:·The applicant was born in Killinochchi. In 1996, his family moved to Nelukkulam Camp to avoid civil war hostilities. The applicant received his school education in the camp.·Kilinochchi was under the LTTE control at that time. The applicant being a Tamil was abused and beaten over suspected links with the LTTE by soldiers from the government army units. He was also forced to do unpaid work for soldiers such as cleaning toilets and cutting wood. On one occasion, he was [very grievously assaulted] by a group of soldiers.·In October 2008, his family bribed a military officer and were permitted to leave the Nelukkulam camp. At that point in time, the applicant and his brother decided to join the LTTE and fight against the Sri Lankan army.·They contacted a person they knew as [Mr A] who was an LTTE recruitment agent in Vavuniya. The applicant believes [Mr A] was an alias. This person was later killed in combat.·[Mr A] organised a transfer of the applicant and his brother, [Mr B], to Kilinochchi and then to the Gaddafi camp in Visuvamadu where the applicant received weapons training. Then he was transferred to another location ‘at the border’ where he was given guarding duties. His brother was separated from him and deployed elsewhere.·The Sri Lankan army was advancing and one night two of his fellow LTTE soldiers got killed. The applicant ran away from his unit and hid in a hut with an elderly couple. After two days, he returned to Vavuniya walking on a jungle path and re-united with his parents in [Village 1].·In mid-2009, he obtained a study place at [named] Campus. He was afraid to be identified by the Sri Lankan army and security agencies as a former LTTE combatant; therefore, he decided to move to [University 1 campus] where he was less likely to be identified as a LTTE supporter. He commenced his study in September 2009 and graduated in 2014.·He was living in constant fear of being identified and arrested as a former LTTE combatant who fought against the Sri Lankan military. The LTTE fighters are still being persecuted in Sri Lanka. His brother was arrested by security forces and since then his current whereabouts have been unknown.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims to the former Immigration Department (the Department) [The first named applicant] and [the second named applicant] made individual statements of claims on 12 April 2018. Useful summaries of the respective applicants’ claims appear in the two primary decision records. The following is a summary of [the first named applicant]’s claims:·The applicant was born in Killinochchi. In 1996, his family moved to Nelukkulam Camp to avoid civil war hostilities. The applicant received his school education in the camp.·Kilinochchi was under the LTTE control at that time. The applicant being a Tamil was abused and beaten over suspected links with the LTTE by soldiers from the government army units. He was also forced to do unpaid work for soldiers such as cleaning toilets and cutting wood. On one occasion, he was [very grievously assaulted] by a group of soldiers.·In October 2008, his family bribed a military officer and were permitted to leave the Nelukkulam camp. At that point in time, the applicant and his brother decided to join the LTTE and fight against the Sri Lankan army.·They contacted a person they knew as [Mr A] who was an LTTE recruitment agent in Vavuniya. The applicant believes [Mr A] was an alias. This person was later killed in combat.·[Mr A] organised a transfer of the applicant and his brother, [Mr B], to Kilinochchi and then to the Gaddafi camp in Visuvamadu where the applicant received weapons training. Then he was transferred to another location ‘at the border’ where he was given guarding duties. His brother was separated from him and deployed elsewhere.·The Sri Lankan army was advancing and one night two of his fellow LTTE soldiers got killed. The applicant ran away from his unit and hid in a hut with an elderly couple. After two days, he returned to Vavuniya walking on a jungle path and re-united with his parents in [Village 1].·In mid-2009, he obtained a study place at [named] Campus. He was afraid to be identified by the Sri Lankan army and security agencies as a former LTTE combatant; therefore, he decided to move to [University 1 campus] where he was less likely to be identified as a LTTE supporter. He commenced his study in September 2009 and graduated in 2014.·He was living in constant fear of being identified and arrested as a former LTTE combatant who fought against the Sri Lankan military. The LTTE fighters are still being persecuted in Sri Lanka. His brother was arrested by security forces and since then his current whereabouts have been unknown. From this evidence, I understand that [the first named applicant] claimed to have been an armed guard when performing guarding duties for the LTTE “at the border”. [The second named applicant]’s claims were also accurately summarised by the delegate:·The applicant married her husband on 12/02/2014.·They have a daughter and currently the applicant is pregnant with their second child.·In Sri Lanka she resided in [Village 2].·Vinayagamoorthy Muralitharan known as Karuna learned that her husband was away in Australia. One day, Karuna and his two bodyguards appeared at her family home and asked her parents to stay inside a room. They asked the applicant if it was true that her husband had been with the LTTE. She stated that he never was an LTTE fighter. Karuna suggested that, if she cooperated, she and her husband would not experience any problems. She understood that he hinted at sexual favours and said that she would think about it and tell her decision later.·Sometime later, she passed a message to Karuna via a neighbour saying that she did not want any ‘help’.·In 2016, Karuna visited her home two or three times asking her about her husband and suggesting to rethink her refusal to ‘cooperate’.·She later heard from other villagers that Karuna and his bodyguards made similar offers to other women in the village. She personally heard about at least three cases. Karuna gave one of those women a job at a local bank office – presumably as a trade-off for sexual favours.·The applicant was scared that Karuna might harm her because of her refusal to give in to his sexual advances and reported these incidents to her husband. He arranged a subsequent Student visa for her so that she could depart Sri Lanka and join him in Australia.·She fears that, if she returns to Sri Lanka, she would once more find herself in the same precarious situation where she might be sexually assaulted by Karuna and that her husband might be also harmed because of his past involvement with the LTTE.