1932240 (Refugee) - [2022] AATA 5220

1932240 (Refugee) [2022] AATA 5220 (21 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Josiah Mason (MARN: 1792763)
CASE NUMBER:  1932240
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Amanda Paxton
DATE:21 December 2022
PLACE OF DECISION:  Melbourne
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 21 December 2022 at 12:30pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – imputed political opinion – fear of harm from local and national politicians because of father and relative’s dispute with them – father in hiding and relative’s protection visa in Australia – limited and vague oral evidence – age, limited education and mental health – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19D(4)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2)(a), (aa), (2B), 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASE
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MZXRE v MIAC (2009) 176 FCR 552
MZZZW v MIBP (2015) 234 FCR 154
SZEPZ v MIMIA (2006) 159 FCR 291
MIAC v SZGUR (2011) 241 CLR 594
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZEUI v MIAC [2008] FCA 1338

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 dependants.
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 and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Sri Lanka, applied for the Protection Subclass XA 866 visa on 1 March 2013 and the delegate refused to grant the visa on 1 December 2014.
The applicant applied for review of the delegate’s decision to the then Refugee Review Tribunal (RRT) (‘the First Tribunal’) on 9 December 2014. On 21 April 2016 the First Tribunal, differently constituted, affirmed the delegate’s decision not to grant the applicant a protection visa as it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act.[1]
[1] AAT 1406690.
An appeal of this decision to the Federal Circuit Court of Australia (FCCA) was dismissed on [date] 2019. On [date] 2019, the orders of the FCCA were set aside by the Federal Court of Australia (FCA) and the matter remitted to the second respondent for hearing and determination according to law.[2]
[2] [deleted].
The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared…

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 1932240 (Refugee)

Details

AGLC: 1932240 (Refugee) [2022] AATA 5220
Case: [2022] AATA 5220
Decision Date: 21 December 2022

CaseChat Overview and Summary

This matter concerned an application for a Protection Class XA visa by a Sri Lankan national. The applicant claimed to fear harm from Sri Lankan authorities, specifically the Criminal Investigation Department (CID) and police, due to a dispute involving his father and a relative with local and national politicians. The applicant's father was in hiding, and his relative had a protection visa in Australia. The Federal Court had previously set aside a decision of the Tribunal and remitted the matter for redetermination.

The primary legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution or significant harm in Sri Lanka, and whether any such risk was for a Convention reason. Specifically, the Tribunal was required to consider claims of imputed political opinion arising from the family's political support for a particular individual, perceived support for the Liberation Tigers of Tamil Eelam (LTTE), and the applicant's status as a failed asylum seeker. The Tribunal also had to determine the applicant's credibility, given the limited and vague nature of his oral evidence, and consider the impact of his age, limited education, and mental health on his claims.

The Tribunal was required to provide the applicant with a fresh opportunity to present evidence and arguments, as mandated by case law following a remittal from the Federal Court. The Tribunal considered the applicant's consistent identity information, confirming Sri Lanka as the country of reference. In assessing credibility, the Tribunal noted that the applicant bears the onus of satisfying the statutory elements of his claim and that the Tribunal is not obliged to make or assist in establishing the claim. The Federal Court had previously found that the original Tribunal had erred in its reasoning regarding discrepancies in the applicant's evidence and in failing to properly consider a police report concerning an attack on a relative.

The Tribunal's decision was to remit the matter for a further hearing before a new Member. This decision was based on the need to provide the applicant with a further opportunity to appear and present arguments on all live issues, consistent with the principles established in cases such as SZHKA and NBKB, and in light of the Federal Court's previous findings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Where the previous decision was set aside by a court and the matter remitted, the majority judgments in SZHKA indicate that a further opportunity to appear before the new Member must be given in every case unless one of the exceptions in ss 360(2)/425(2) applies.[5] Consistently with NBKB, a fresh opportunity to give evidence and present arguments on all live issues arising in the review should be given at a further hearing, even if those issues were raised in an earlier hearing by the previous Member.[6]CONSIDERATION OF CLAIMS AND EVIDENCE[5] MZXRE v MIAC (2009) 176 FCR 552.[6] Note, however, that the Tribunal may be entitled to rely on the fact that issues were identified to the applicant at an earlier hearing provided it gives the applicant a further opportunity to appear and present arguments on those issues: SZEUI v MIAC [2008] FCA 1338 at [11].Claims for protection and supporting documentation In his Form 866C, application for a Protection Class XA visa, the applicant stated he was born in [Town 1], Puttalam, North Western Province in Sri Lanka on [Date] and is of Tamil ethnicity and Hindu.[7] He stated he had resided in [Village 1], Puttalam North Western Province in Sri Lanka and worked as a fisherman in [Village 1] from December 2009 until March 2012.[7] See Department file [Reference]. In his statement to the Department on 21 February 2013, the applicant claimed to fear harm from the Sri Lankan Criminal Investigation Department (CID) arising from a dispute between his father and his [Relative A], and a politician with links to the CID. He made the following claims for protection:[8]· He fled Sri Lanka because he was afraid to remain there following the invasion of his home by CID personnel who were looking for his [Relative A] and father and stated they would come after him if his mother did not tell them where his father and [Relative A] were.· He fears returning to Sri Lanka because he believes the authorities will kidnap him, torture him and kill him.· He believes the Sri Lankan authorities, especially the CID and police who have connections with the people against his father and [Relative A] will harm him and mistreat him after they abduct him. They will likely kill him as his [Relative A] is in Australia and his father is still in hiding. His personal details are known to the CID.[8] See Department file [Reference].Tribunal submissions In submissions to the First Tribunal dated 4 April 2016, the applicant’s then representative stated that the applicant faces a real chance of persecution in Sri Lanka involving serious harm and systematic and discriminatory conduct, because of his race as a Tamil, his membership of a particular social group of failed asylum seekers in Sri Lanka, and his actual/imputed political opinion arising from: · His family’s political support of and activities on behalf of [Mr B], [official];· His perceived support for the Liberation Tigers of Tamil Eelam (LTTE); and· His status as a failed asylum seeker.

Decision

Reasons for decision

A psychologist report dated 22 November 2022 is also provided by [Dr D], [Medical Specialists].[13][13] AAT 1932240, Doc Id. 10469944, 23 November 2022.Federal Court decision The appellant alleged that the Tribunal at first instance erred in two respects: · The Tribunal, by finding that the appellant was not a truthful or credible witness, engaged in irrational or illogical reasoning, made findings without any probative basis, and failed to carry out its statutory task by failing to consider relevant information. · The Tribunal engaged in irrational or illogical reasoning, and failed to carry out its statutory task by failing to properly consider a police report submitted by the appellant regarding an attack on his aunt by marriage on his paternal side. Both grounds of appeal were upheld. In relation to the first ground, Justice Beach concluded that none of the asserted discrepancies upon which the Tribunal relied were in fact significant discrepancies, and to describe them as that, and to have used them to conclude that the appellant was not to be believed, was erroneous.[14][14] MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [48]. In relation to the second ground, Justice Beach stated that it was not open to the Tribunal to consider that the document was not genuine, and that some weight should have been given to this document which on its face confirmed that the appellant’s [Relative A] was of interest at that time at least to supporters of Sanath Nishantha. FINDINGS AND REASONSIdentity and country of reference The applicant has consistently confirmed information presented in his Form 866C, application for a Protection Class XA visa that he was born in [Town 1], Puttalam, North Western Province in Sri Lanka on [Date].[15] On the basis of the consistent evidence of the applicant in relation to his identity, the Tribunal finds there is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country but Sri Lanka. Therefore, based on the information provided by the applicant, the Tribunal finds he is a citizen of Sri Lanka and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively. [15] See Department file [Reference].Credibility The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible for or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[16] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[17][16] Section 5AAA of the Act.[17] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.

Ratio Decidendi

Legal Principle Established

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 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Information considered on remittal Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act1975 (Cth) requires the reconstituted Tribunal to continue the proceeding.[3] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[4] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.[3] Section 19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).[4] Section 19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50]. Where the previous decision was set aside by a court and the matter remitted, the majority judgments in SZHKA indicate that a further opportunity to appear before the new Member must be given in every case unless one of the exceptions in ss 360(2)/425(2) applies.[5] Consistently with NBKB, a fresh opportunity to give evidence and present arguments on all live issues arising in the review should be given at a further hearing, even if those issues were raised in an earlier hearing by the previous Member.[6]CONSIDERATION OF CLAIMS AND EVIDENCE[5] MZXRE v MIAC (2009) 176 FCR 552.[6] Note, however, that the Tribunal may be entitled to rely on the fact that issues were identified to the applicant at an earlier hearing provided it gives the applicant a further opportunity to appear and present arguments on those issues: SZEUI v MIAC [2008] FCA 1338 at [11].Claims for protection and supporting documentation