2101209 (Refugee) - [2024] ARTA 662

2101209 (REFUGEE) [2024] ARTA 662 (15 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2101209
Tribunal:General Member G Fitzgerald SC
Date:15 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first applicant meets s 36(2)(a) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

Statement made on 15 November 2024 at 12:46pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – Sunni Muslim minority group/sect – long-term member and community organiser – fear of harm from rival group – arguments and violent clashes – exaggerated, inconsistent and non-credible claims and evidence – continued residence and multiple departures and returns to Australia and other countries – no contact with group while in Australia – group members’ involvement in major terrorist attack – brother officially investigated – country information – unfairly targeted arrests and monitoring, and community harassment, discrimination and intimidation – group’s proscription now lifted – internal divisions among Muslims – claims accepted with some reservations – members of family unit wife and children – youngest child born after refusal decision and not an applicant in this review – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4)(b), (5), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), rr 1.12(4), 2.08, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Ponnundurai v MIMA [2000] FCA 91
Prasad v MIEA (1985) 6 FCR 155
Somaghi v MILGEA (1991) 31 FCR 100
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF 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 under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Sri Lanka. They applied for the visas on 24 March 2016. The delegate refused to grant the visas on 11 January 2021.
On 3 February 2021, the applicants sought review of the delegate’s decision by the then Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the…

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 2101209 (Refugee)

Details

AGLC: 2101209 (Refugee) [2024] ARTA 662
Case: [2024] ARTA 662
Decision Date: 15 November 2024

CaseChat Overview and Summary

The applicants, a Sri Lankan family, sought a review of a decision by the Department of Home Affairs to refuse their application for protection visas. The first applicant, a Sunni Muslim who was a member of a particular sect in Sri Lanka, claimed that he would face persecution if returned to his home country due to his religious affiliation and community involvement. The second, third, fourth and fifth applicants are his wife and their four children. The Refugee Review Tribunal was required to determine whether the first applicant faced a real chance of persecution upon return to Sri Lanka or if there were substantial grounds for believing he would suffer significant harm, and whether the other applicants were members of the same family unit as the first applicant. The Tribunal also had to consider the credibility of the evidence and claims presented by the applicants.

The Tribunal found the first applicant's claims to be exaggerated, inconsistent, and non-credible. His extensive travel history, including multiple departures and returns to Australia and other countries, and lack of contact with his group while in Australia, further undermined his credibility. The Tribunal accepted that there was a history of unfair targeting, arrests, and harassment of members of the Sunni Muslim minority group in Sri Lanka, but noted that the group's proscription had been lifted and there were now internal divisions among Muslims in the country. While the Tribunal accepted some of the claims with reservations, it ultimately concluded that the first applicant did not meet the threshold for a protection visa under the Act.

The Tribunal found that the second, third, fourth, and fifth applicants were members of the same family unit as the first applicant. However, the youngest child, born after the Departmental decision refusing the protection visas, was not considered in this review as the Tribunal did not have jurisdiction to include her. The Tribunal remitted the decision under review to the Department for reconsideration in light of its findings.

In summary, the Tribunal found the first applicant's claims to be exaggerated and non-credible, and did not accept that he met the criteria for a protection visa. The Tribunal found the other applicants to be members of the same family unit as the first applicant. The decision was remitted to the Department for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

The applicant also has a very extensive travel history, set out in tabular form in his Departmental application going for about three pages.[5] The first applicant confirmed at the hearing that this table was true and complete. [5]Departmental application, Part C, question 80, from page 14.The applicants’ backgrounds The Tribunal will focus on the first applicant, as he has the only independent protection claims in this case. He is in his early-[Decade]s. His wife is in her early-[Decade]s. Their children are aged from about [Age] to [Age] years. Background in Sri Lanka and [Country 1] While in Sri Lanka, the first applicant lived almost the whole time in his hometown of [Town 1] in the Eastern Province (next to [City]), as shown in the above table. He did live in Colombo for about four months in 2005 and moved around Sri Lanka in late 2015. Between their marriage in [Month Year] and her arrival with the rest of the family in Australia in December 2015, the second applicant and any children lived in [Town 1] (except for the period of about 1 ½ years in [Country 1]). The applicant still has family living in his hometown. His father died in [Year] but his mother is still living there, together with the grandfather of the first applicant. His younger brother also still lives in his hometown but he is not in contact with him and he has not been well. He is in regular contact with his mother. When he speaks to her, he sometimes speaks to his grandfather. His older brother ([Mr A]) now lives in [Country 7]. He is the one who gave evidence to the Tribunal. His wife said that she and her husband between them still own property in Sri Lanka. They own three houses in [Town 1] and an apartment in Colombo. The first applicant’s formal education ended in Sri Lanka in [Year] when he obtained GCE certificate at an advanced level at a high school in his hometown. The first applicant also has a lengthy employment history which he set out in four pages in his Departmental application. [6] Before coming to Australia, he worked mainly in [product 1] sales, marketing and management for various companies in Sri Lanka and in [Town 1]. He said that his father was [an occupation]. He learned this trade from him and others. He worked mainly in sales and management of tailoring for [product 1] businesses. In August 2010, he became a part owner of a business operating in [City, Country 1] known as [Business].[6]Departmental application, Part C, question 84, from page 17. He described his ethnicity on his Departmental application as being ‘Sunni Muslim’. [7] He was questioned about this at the first hearing. Eventually he said that his ethnicity was Sri Lankan (or Ceylon) Moor.[7]Departmental application, Part C, question 32, page 4. He described his religion as being Sunni Muslim but he was a member of a particular group or sect within that religion while in Sri Lanka (which he referred to as the Thowheed sect). [8][8]The Tribunal notes that the sect is also referred to as the Thawheed or Wahhabi sect.

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 EVIDENCEIssues The issues in this review are:a.whether there is a real chance that, if the first applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; or, if not, b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act; andc.whether the second, third, fourth and fifth applicants are members of the same family unit as the first applicant? The first applicant’s family He and his wife married in Sri Lanka on [Date]. They have four children. Their first two children (boys) were born in Sri Lanka in [Year] and [Year]. The remaining two children (girls) were born in Australia in [Year] and [Year]. The first three of these children are respectively the third, fourth and fifth applicants. The last girl born in Australia in [Year] is not an applicant in this review. She was born on [Date], after the Departmental decision refusing the protection visas on 11 January 2021. [1][1]The applicants’ then representative wrote to the Tribunal on 25 July 2024, seeking to add this daughter as an applicant in the review. The Tribunal responded by letter dated 29 July 2024, noting that it did not have jurisdiction to include in or add a child born after the decision was made to the review, referring to reg. 2.08 of the Migration Regulations 1994. The first, second, third and fourth applicants were all born in Sri Lanka. The fifth applicant was born in Australia.Nationality, country of reference and receiving country The applicants’ nationality is not in issue. The Department was satisfied as to the identity documents which they produced. As it has no reason to doubt this assessment, the Tribunal accepts that the applicants are Sri Lankan citizens. Accordingly, Sri Lanka is the country of reference and receiving country for their application for protection visas. The applicants’ immigration and travel background The first applicant was a very well-travelled businessman. Before coming to Australia, he lived in Sri Lanka and [Country 1]. He has travelled to or visited [Countries 2-6]. The first applicant’s residential history before arriving in Australia in December 2015 is complicated. This is summarised below in tabular form, based on the addresses he gave in his Departmental application.[2] The first applicant confirmed at the hearing that these details were true and complete.[2]The first applicant’s application for a protection visa to the Department lodged on 24 March 2016 (the Departmental application), Part C, at page 15 (question 81), as supplemented by his evidence at the first hearing as to the period September to December 2015 which was not listed in his form.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.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, 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 EVIDENCEIssues The issues in this review are:a.whether there is a real chance that, if the first applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; or, if not, b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act; andc.whether the second, third, fourth and fifth applicants are members of the same family unit as the first applicant? The first applicant’s family He and his wife married in Sri Lanka on [Date]. They have four children. Their first two children (boys) were born in Sri Lanka in [Year] and [Year]. The remaining two children (girls) were born in Australia in [Year] and [Year]. The first three of these children are respectively the third, fourth and fifth applicants. The last girl born in Australia in [Year] is not an applicant in this review. She was born on [Date], after the Departmental decision refusing the protection visas on 11 January 2021. [1][1]The applicants’ then representative wrote to the Tribunal on 25 July 2024, seeking to add this daughter as an applicant in the review. The Tribunal responded by letter dated 29 July 2024, noting that it did not have jurisdiction to include in or add a child born after the decision was made to the review, referring to reg. 2.08 of the Migration Regulations 1994. The first, second, third and fourth applicants were all born in Sri Lanka. The fifth applicant was born in Australia.Nationality, country of reference and receiving country