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1905471 (Refugee)

1905471 (Refugee)

Case [2019] AATA 4601 4 July 2019

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1905471 (Refugee) [2019] AATA 4601 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1905471
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Frances Simmons
DATE:4 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that:
a) the applicant satisfies s.36(2)(a) of the Migration Act; and
b)    the grant of the visa is not prevented by s.91WA.

Statement made on 04 July 2019 at 4:19pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – religion – Muslim – interreligious relationship – particular social group – Muslim women in an interreligious relationship – victim of family violence – physical assault – fear of killing – gender-based violence – intervention by religious leaders – exclusion from the Mosque – genuine and ongoing relationship – threat of forced marriage – decision under review remitted

PRACTICE AND PROCEDURE – whether grant of the visa prevented by s 91WA – loss of passport – reasonable explanation for destruction or disposal of documentary evidence of identity – applicant’s identity accepted as claimed – applicant did not attempt to conceal identity in the visa application process – acts by a third party which involve destroying or removing documents from the applicant’s possession

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91WA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72
Briginshaw v Briginshaw (1938) 60 CLR 336
Chan Yee Kin v MIEA (1989) 169 CLR 379
DFE16 v MIBP [2017] FCCA 308
EDI18 v Minister for Home Affairs [2019] FCCA 631
EUR18 v Minister for Home Affairs [2019] FCCA 1002
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Khawar (2002) 210 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
NAQJ v MIMIA [2004] FCA 946
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sullivan v CASA (2014) 226 FCR 555

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 Immigration on 7 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia [in] January 2019 and applied for the protection visa on 6 February 2019. She claims she will be persecuted if she returns to Sri Lanka because she is a Muslim woman and she has entered into an interreligious relationship with [Mr A], a Sri Lankan Tamil man of the Hindu faith.
The applicant appeared before the Tribunal on…

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 1905471 (Refugee)

Details

AGLC: 1905471 (Refugee) [2019] AATA 4601
Case: [2019] AATA 4601
Decision Date: 4 July 2019

CaseChat Overview and Summary

The applicant, a Sri Lankan national of Muslim faith, sought review of a decision by the Minister to refuse her application for a protection visa. The applicant claimed to fear persecution in Sri Lanka due to her interreligious relationship with a Buddhist man, alleging she was a victim of family violence, including physical assault and threats of killing, and faced exclusion from her religious community and the threat of forced marriage. The Minister's decision was under review by the court.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa, specifically whether she could establish a well-founded fear of persecution based on her membership in a particular social group, defined as "Muslim women in an interreligious relationship," and whether she was a victim of gender-based violence. Additionally, the court considered whether the grant of the visa was prevented by section 91WA of the Migration Act 1958 (Cth), which relates to the destruction or disposal of identity documents, and whether the applicant had provided a reasonable explanation for the loss of her passport.

The court found that the applicant's identity had been accepted as claimed and that she had not attempted to conceal her identity during the visa application process. It was also determined that the loss of her passport was due to acts by a third party, which constituted a reasonable explanation for the destruction or disposal of documentary evidence of her identity. The court concluded that the applicant's claim of being a victim of family violence, including physical assault and threats of killing, coupled with the intervention of religious leaders and her exclusion from the Mosque, established a genuine and ongoing relationship with her partner and a fear of forced marriage, thereby satisfying the criteria for a protection visa.

Consequently, the court remitted the decision under review to the Minister for reconsideration.

Orders