Evidence
Evidence Before The Court
The applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Tamil and English languages.CLAIMS AND EVIDENCE The applicant claims to be [an age]-year-old Tamil who was born and raised in [City 1], Sri Lanka. While in Sri Lanka he was detained and abused by the Sri Lankan authorities on 2 occasions: once in 1994, following a fight between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) in the [City 1] area; and once in June 2008 following a bomb blast in the [Area 1] area of [City 1]. The applicant feared that if he returned to Sri Lanka, he would be arrested and tortured by the Sri Lankan authorities, who would perceive him as being associated with the LTTE. In their decision record, the delegate accepted that the applicant was arrested and detained in 1994 and 2008 but did not accept that he was of ongoing interest to the Sri Lankan authorities at the time of his departure in 2010, or that he had a profile of interest to the Sri Lankan authorities at the time of the delegate’s decision. The applicant has provided a large amount of information to the Department and Tribunal, including:·oral evidence given at his entry interview on 5 December 2010, his protection visa interview on 27 March 2019, and the Tribunal hearing on 23 August 2024;·four statutory declarations declared on 23 April 2011 (2011 statement), 20 December 2018 (2018 statement) 19 August 2024 (August statement) and 16 September 2024 (September statement);·a letter prepared by the applicant’s psychologist, [Psychologist A], dated 19 August 2024; and·letters and reports from the applicant’s support workers, medical practitioners, friends and acquaintances. As is evident from the above case chronology, the applicant has advanced his protection claims on numerous occasions to a range of decision makers. On each occasion, the applicant has set out a generally consistent account of his history in Sri Lanka and his fears of harm if returned. The Tribunal has had the benefit of listening to the audio recording of the applicant’s department interview, seeing the applicant at hearing, and considering the supporting submissions and country information provided by his representative. The Tribunal found the applicant to be an engaged and responsive witness, albeit one whose capacity to give evidence was hampered by the extensive trauma he has endured in the past. The Tribunal has no concerns as to the applicant’s credibility or his evidence of his history and experiences in Sri Lanka.CRITERIA FOR A PROTECTION VISA The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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.
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 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.Siran NyaballyMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Identity The applicant has provided identity documents confirming that he is a citizen of Sri Lanka. There is no information before the Tribunal suggesting that he has a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of Sri Lanka, and that Sri Lanka is the receiving country and country of reference for the purposes of this review.Claims It is not necessary to set out the applicant’s history and experiences in detail. As noted above, the Tribunal has no concerns with the applicant’s credibility and found the applicant’s oral and written evidence to be generally consistent, plausible, and, where relevant, corroborated by information from third parties. As the Tribunal has ultimately concluded that the applicant meets s 36(2)(a) of the Act on the basis of his imputed pro-Tamil separatism political opinion, it has only addressed the applicant’s claims to the extent that they are relevant to its findings. Background The applicant was born on [date] in [City 1], in the Eastern Province of Sri Lanka. He is of Tamil ethnicity and Hindu religion. The applicant [has specified family members]. His parents and [one sibling] are deceased. His [specified siblings] live in Sri Lanka, Australia and [Country 1], and [another] lives in [Country 2]. The applicant married his wife in 2007. They have [number] children: [ages and genders specified]. The applicant’s wife and children remain in Sri Lanka. While he lived in Sri Lanka, the applicant primarily worked as [an occupation 1]. Relevantly, he was working as [an occupation 1] in [City 1] from 2005 to 2008. The applicant ceased working as [an occupation 1] for about a year between 2008 and 2009, before resuming work from 2009 until his departure from Sri Lanka. The applicant left Sri Lanka by plane in April 2010. The Tribunal accepts the above matters to be true.2008 arrest The applicant’s claims to fear harm from the Sri Lankan authorities stem from an incident in early 2008, when a [bomb] was detonated in the [Area 1] of [City 1]. The SLA and the Criminal Intelligence Department (CID) suspected that the bomb was planted by Tamil [occupation 1s] who supported the LTTE. There were a number of [occupation 1s] who would regularly [gather] in an area near [Area 1], all of whom were Tamil. [Many] would [gather] at [this location], but only 4 or 5 (including the applicant) were present at the time of the blast. In the months following the bomb blast, several local Tamil [occupation 1s] were kidnapped and killed. The other [workers] suspected that the SLA and/or the CID were responsible for their disappearance. The applicant was concerned that the Sri Lankan authorities would suspect him of involvement in the blast, so decided to avoid working at [Area 1], opting instead to [work] around his home area. In about June 2008, the applicant was walking to his sister’s home when he was stopped by men wearing army trousers and civilian shirts. The men, who were members of the CID, detained the applicant and took him to a military checkpoint at [Area 1]. People who witnessed the applicant’s arrest informed his family, who went to the checkpoint to beg for the applicant’s release. The CID eventually took the applicant to a police station in [location]. The applicant was detained and questioned about the bomb blast, during which time the police officers punched and slapped him. The police officers asked the applicant for his name and address, then prepared a written statement in Sinhalese, forcing him to sign it. The applicant did not know what was contained in the statement. The applicant was released after about 9 hours.[1] [1] At his interview with the IPA officer the applicant stated that he was detained again in 2010, however in subsequent interviews he clarified that his evidence to the IPA was incorrect and he was only detained in 2008.