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2111860 (Refugee)

2111860 (Refugee)

Case [2024] AATA 4069 20 September 2024

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2111860 (Refugee) [2024] AATA 4069 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE: Miss Saemeh Ghasemi
CASE NUMBERS: 2111727
2111861
2111860
2111864

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Jason Pennell
DATE:20 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i) that the applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second, third and fourth applicants satisfy s 36(2)(b)(i) of the Migration Act, based on their membership of the same family unit as the applicant.

Statement made on 20 September 2024 at 5:14pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity, religion and political opinion – Tamil Muslim – approached to sell property by individuals with political, military or underworld connections – threats and extortion – rented part of house to Muslim politician – inaction or harassment by police – hit-and-run accident – armed revolt and general violence by Buddhist nationalists – brother and cousin killed – return from living and working in another country – vague claims and evidence, and no supporting evidence – country information – economic conditions, official and social discrimination, threats and violence, and inadequate state protection – members of family unit wife and children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 5H(1)(a), 5J(1)(a), (4)(c), 36(2)(a), (b)(i), 65, 91R(1)(c)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559 at 572
MIMA v Zheng [2000] FCA 50
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Periannan Murugasu v MIEA (1987) 217 ALR 17
Prasad v MIEA (1985) 6 FCR 155
Ram v MIEA (1995) 57 FCR 565
Savvin v MIMA [1999] FCA 1265
VCAD v MIMIA [2004] FCA 1005
VSAI v MIMIA [2004] FCA 1602
Wang v MIMA (2000) 105 FCR 548
Woudneh v Inder (FCA, Gray J, 16 September 1988)
WZAOO v MIAC (2012) 134 ALD 332
W161/01A v MIMA [2002] FCA 285
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 Home Affairs on 20 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Sri Lanka. [The first applicant]…

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 2111860 (Refugee)

Details

AGLC: 2111860 (Refugee) [2024] AATA 4069
Case: [2024] AATA 4069
Decision Date: 20 September 2024

CaseChat Overview and Summary

The applicant, a Sri Lankan Tamil Muslim, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a protection visa. The applicant claimed to fear persecution in Sri Lanka due to his ethnicity, religion, and political opinion, alleging he had been subjected to threats and extortion by individuals connected to political, military, or underworld groups. He also cited concerns arising from renting part of his property to a Muslim politician and experiencing inaction or harassment from the police. Further, he referred to a hit-and-run accident and general violence by Buddhist nationalists, which had resulted in the deaths of his brother and cousin. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, and if so, whether he would be owed protection under the Migration Act 1958 (Cth).

The Tribunal considered evidence relating to the applicant's claims, including country information concerning the economic conditions, official and social discrimination, threats and violence, and inadequate state protection in Sri Lanka. It also took into account the applicant's family unit, comprising his wife and children. The Tribunal found that the applicant's claims and evidence were vague and lacked supporting documentation. However, after reviewing the available information, the Tribunal concluded that the applicant had not been afforded procedural fairness in the initial assessment of his claims.

Consequently, the Tribunal set aside the original decision and remitted the matter to the delegate of the Minister for reconsideration according to law. This remittal was based on the finding that the applicant's case had not been properly considered, particularly in light of the country information and the specific circumstances he alleged.

Orders