1834929 (Refugee)

[2023] AATA 2241

1834929 (Refugee) [2023] AATA 2241 (27 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834929

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Paul Noonan

DATE:27 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 27 April 2023 at 3.26pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party volunteer – particular social group – failed asylum seekers – suspected people smugglers – physical assault – fear of torture – mental illness – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 45AA, 65, 91R, 91S, 438
Migration Regulations 1994, r 2.08F; Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259

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

1. 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).

2. The applicant who claims to be a citizen of Sri Lanka applied for the visa on 20 June 2013 and the delegate refused to grant the visa on 17 December 2014. It is not in dispute that the applicant is a Sri Lankan national and the delegate and previous Tribunal found this to be the case. The departmental file contains a copy of his Sri Lankan passport. The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.

3. He claims to fear harm primarily on the basis of his political opinion and his membership of the particular social groups ‘failed asylum seekers returned to Sri Lanka’ and ‘suspected people smugglers from Sri Lanka’. He has also made claims to fear harm because of his past relationship with his ex-wife and because of his brother’s association with an underworld gang.

4. The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of reg 2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

6. For the following reasons, the Tribunal has concluded that the decision of the delegate should be remitted for reconsideration.

   History of proceedings

7. The applicant arrived in Australia [in] April 2013 by boat and without a visa and applied for the visa on 11 February 2013. A delegate refused to grant the visa on 17 December 2014. The applicant appeared before the Administrative Appeals Tribunal (the Tribunal) (differently constituted) on 21 July 2016. The Tribunal set aside the decision to refuse to grant the applicant a Protection (Class XZ) visa and substituted its decision to refuse to grant the applicant a Protection (Class XD) visa. The applicant subsequently appealed this decision to the Federal Circuit Court. [In] November 2018 the matter was remitted by consent to the Tribunal. In so doing the Minister conceded that the applicant was denied procedural fairness on the basis that a non-disclosure certificate issued under s. 438 of the Act was not disclosed to the applicant and that at least some of the documents subject to the certificate were relevant, or potentially relevant to the issues to be determined upon review.

8. The applicant appeared before the Tribunal (as presently constituted) on 11 May 2022 and he was unrepresented. This hearing was partially conducted. The Tribunal adjourned the hearing and subsequently requested the Department of Home Affairs arrange a psychological assessment of the applicant. A comprehensive report, dated 13 March 2023, was subsequently received by the Tribunal. In this report [Dr A] assessed that the applicant meets diagnostic criteria for a Major Depressive Disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, 5th Ed. [Dr A] noted that the applicant is prescribed medicines to assist him manage his condition. He was assessed as being competent to participate in a Tribunal hearing.

9. A resumed hearing was subsequently held on 26 April 2023. The applicant appeared before the Tribunal to give evidence and present arguments.  The applicant was represented at the resumed hearing by newly appointed legal representation. The Tribunal was satisfied that during the course of the hearing the applicant understood the questions asked of him and was able to provide answers to those questions in a reasonably coherent manner and that he was able to meaningfully participate in the hearing.

10. The Tribunal was assisted in its conduct of the hearing by an interpreter in the English and Sinhala languages.

    RELEVANT LAW

11. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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, the applicant 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.

    Refugee criterion

12. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

13. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

14. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

17. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

18. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

19. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

20. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

21. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

22. 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 a protection 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 the applicant 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’).

23. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

24. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

25. 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.

26. For the purposes of his appeal to the Tribunal the applicant supplied a copy of the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Political Opinion

27. The Tribunal took considerable evidence from the applicant about his vision and plans for the reforming of Sri Lanka. He stated that he would like to go back and make the people aware of his plans. The Tribunal notes that much of the substance of these plans appeared somewhat chaotic and delusional in nature. As an example, in the first hearing, the applicant stated that he wished to divide the world into two segments with him on one side and the rest on the other side and if the knowledge of the people on one side is less than him then they need to listen to him. He would like to make it a competition and his plan includes all the answers for people on earth for the next 3000 years. He wants to go back to Sri Lanka and give this plan to them. He needs to lift the weight and tell his story or he may become dangerous. In the resumed hearing he continued on emphasising aspects of his plan and that he would like to divide Sri Lanka in two. He has approached the Sri Lankan embassy on several occasions by phone and attempted to tell them his plan. He was forced to abuse them when they did not listen. He confirmed he had given the embassy his details. He has also attempted to tell local Sri Lankan priests about his plan. The Tribunal notes that the applicant appeared impassioned about his plan and did not present in a manner suggestive of artifice in any way.

28. However, when asked direct questions by the Tribunal about past claims of harm and evidence he has previously given the applicant appeared reasonably coherent in his answers. He was clear that he had undertaken a low-level volunteer campaign role for the United National Party (UNP), which was a major party at the time, in the 2005 and 2010 general elections. The Tribunal accepts this to be the case. The applicant also claimed that he suffered violence after each of these elections. He speculated that these violent attacks upon him were linked to his political activities. However, as discussed at hearing, he has consistently given evidence that no politically linked threats were issued to him during any of these claimed attacks. The last such claimed attack was in 2012 at the hands of drunks.

29. Given the applicant’s agreed past low level political activities, and the significant passage of time, the Tribunal is satisfied that the applicant would not have any political profile should he return to Sri Lanka. The Tribunal accepts that the applicant has suffered past harm due to fights and attacks in the past in Sri Lanka, however the evidence that these were related to his political opinion is highly speculative. This is because no direct threats related to his political opinion were ever issued in these attacks and the Tribunal considers it implausible that, if politics was the motivation for any such attack or altercation, that it would not have been made very clear to him that this was the motivation for the attacks in order to dissuade him from undertaking further political activities that the assailants objected to.

30. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

    Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

31. The Tribunal finds that past altercations and assaults claimed by the applicant in Sri Lanka were not related to his political opinion. The Tribunal finds that with the considerable passage of time it is highly unlikely, such that it is mere speculation, that any person involved in an assault or altercation with the applicant would remain adversely interested in the applicant more than ten years later.

32. For these reasons the Tribunal does not accept there to be a real chance that the applicant would be targeted for harm for any reason related to his UNP activities or his political opinion if he returns to Sri Lanka, now or in the reasonably foreseeable future.

    The applicant’s ex-wife and family and his brother

33. These claims were briefly considered by the previously constituted tribunal. The Tribunal discussed these with the applicant. He confirmed that he has not had contact with his ex-wife or her family for many years and he is now legally divorced from her. He made no claim to still fear harm for this reason given the long passage of time, a complete lack of contact and the past formalisation of his divorce. With respect to his brother the applicant noted that he had experienced problems with his brother’s enemies in Sri Lanka, but this was a long time ago. He has not experienced any trouble with respect to this claim for a long time and he did not seek to elaborate preferring to again discuss his plans for Sri Lanka.

34. The Tribunal considers that the applicant has not had any contact with his ex-wife, her family, or his brother’s past enemies for many years. No claims of past harm from these sources were put forward by the applicant to the Tribunal. Given this history the Tribunal considers that again it is mere speculation that the applicant is at risk of persecution from these sources.

35. For these reasons the Tribunal does not accept there to be a real chance that the applicant would be targeted for harm for any reason related to his ex-wife, her family or his brother’s enemies.

    Returning as a failed asylum seeker / people smuggler / mental illness

36. As discussed at the hearing the Departmental file contained a non-disclosure certificate issued pursuant to s 438 of the Act. The Tribunal gave a copy of this certificate to the applicant’s representative and explained that it had formed the view that the certificate was valid and invited comment on this view if any. The Tribunal also set out its view that the evidence subject to the certificate was relevant to the review and that the information would not necessarily be a reason for affirming the decision under review. The Tribunal set out to the applicant in broad terms that the evidence subject to the non-disclosure certificate concerns information obtained by the Department that reflected that a fellow traveller on his arrival boat had identified the applicant as a driver of the boat. Further that the applicant had been violent on the boat. The Tribunal put to the applicant that this information may reflect that he was an organiser of the trip and could therefore potentially be viewed as a people smuggler.

1. The applicant responded, after conferring with his representative, that he denied that he was a people smuggler but that he did fight the organisers of the boat trip while on the boat. He is concerned that this allegation has also become known to the Sri Lankan authorities and as such he will be incorrectly charged as a people smuggler should he be required to return to Sri Lanka.

2. The Sri Lankan Immigrants & Emigrants Act (I&E Act) sets out that a person organising transportation of persons by sea in order to leave Sri Lanka in contravention of any provisions of this Act shall upon conviction be liable to imprisonment for a term of between one and five years. Section 47 provides that such an offence is one that bail cannot be granted for.[2] DFAT assesses that most illegal departees who return are subject to a fine and 14 days imprisonment if unable to pay the fine. Sources note that the processing of these cases is very slow and cases are likely only taken forward where a member of a people smuggling venture has been located.[3] DFAT has assessed that people smuggler organisers have been convicted and imprisoned in the past.[4]

   [2] Immigrants and Emigrants (Amendment) Act (No. 31 of 2006) - Sect 3 (commonlii.org) (accessed 27 April 2023)

   [3] DFAT Country Information Report, Sri Lanka, 23 December 2021, p. 48

   [4] DFAT Country Information Report, Country Information Request No. LKA15302 and LKA 15586: Treatment of suspected people smugglers’, Country Information Report No. 14/02, 24 January 2014 (sourced from DFAT advice of 7 January 2014), CX317331

3. According to the latest DFAT report[5]:

   In October 2016, the HRCSL submitted a report to the UN Committee against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that police use torture during interrogation and arrest regardless of the nature of the suspected offence. The ITJP cited 76 alleged cases of torture between 2015 and 2017 involving Tamils suspected of LTTE involvement, the majority of which followed ‘white van’ abductions, and were reportedly conducted by Counter-Terrorism Investigations Division (CTID), CID and members of the armed forces. All cases allegedly involved physical and psychological torture, such as beatings, burning, asphyxiation and rape. In its 2020 report on human rights, the US Department of State stated that ‘torture and excessive use of force by police, particularly to extract confessions, remained endemic.’

   Multiple local sources told DFAT police routinely mistreat suspects during criminal investigations, including using torture as a way of extracting confessions. Sources also told DFAT torture was common in prisons. Torture, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities, though more likely to affect the poor and marginalised, including members of criminal groups and LGBTI individuals, among others. In recent years, the HRCSL has received hundreds of complaints of torture annually, chiefly claiming its use by various departments of the Sri Lanka police. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to the practice.

   DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence.

   DFAT assesses that Sri Lankans face a low risk of torture overall. DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the Government.

   [5] DFAT Country Information Report, Sri Lanka, 23 December 2021, p. 40-41

4. The Tribunal notes that this country information reflects that torture is routinely used in police investigation and there is a moderate risk of torture being deployed against anyone detained by police regardless of ethnicity and that it is more likely employed against people with underlying vulnerabilities such as the marginalised or poor. The Tribunal has carefully considered this country information within the context of the applicant’s accepted profile as a person suffering significant mental health problems. The Tribunal notes with concern the applicant’s evidence of repeated attempts to contact and abuse the Sri Lankan embassy when his visions for the country were not accepted. The Tribunal considers that the applicant’s mental health, presentation and thought processes will manifest as vulnerabilities that would increase the chance of him coming to the adverse attention of the authorities should he be detained in Sri Lanka. The Tribunal notes that persons on the boat in which he travelled to Australia have alleged that he was an organiser of the boat trip in that he drove the boat and was violent on the boat. While the applicant has denied being an organiser the Tribunal is concerned that persons on the boat may well have also imparted this information to Sri Lankan authorities. As such, given his past behaviour and overall profile, the Tribunal is satisfied that there is a significant chance that the applicant will be detained upon his return to Sri Lanka. In light of the above country information the Tribunal is satisfied that there is a real chance that the applicant will be subject to serious harm during an extended stay in detention, for charges that bail cannot be granted for. It is clear that the laws pertaining to people smuggling and illegal departure are not discriminatorily applied. As such the Tribunal does not accept that a Convention reason would be the essential and significant reason for any harm under s91R(1)(a) of the Act.

5. In considering whether the applicant will be subjected to ‘significant harm’ for the purposes of the complementary protection criteria, the Tribunal is satisfied that there is a real risk that the applicant would be subjected to an act by which severe physical or mental pain or suffering is inflicted upon him for the purpose of obtaining from him information or a confession in the process of being questioned on his return to Sri Lanka. The Tribunal finds that such treatment will not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of ICCPR.  

6. As the perpetrator of the feared harm is the Sri Lankan authorities, the Tribunal is satisfied state protection is not available to the applicant and that he has no internal relocation alternative. The Tribunal is satisfied that this situation applies to the applicant’s specific set of circumstances and is not one faced by the population of Sri Lanka generally and the applicant is not excluded from the complementary protection criterion for reason of any of the provisos set out in s 36(2B).

7. Accordingly, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant meets the complementary protection criterion.

   Conclusions

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

    Paul Noonan
    Member