2202883 (Refugee) - [2022] AATA 4149

2202883 (Refugee) [2022] AATA 4149 (28 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2202883
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Brendan Darcy
DATE:28 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 September 2022 at 11:57am
CATCHWORDS
REFUGEE – Protection visa – Sri Lanka –political opinion – long-term involvement with the United National Party – a witness to a historic serious crime – applicant had voluntarily returned to Sri Lanka – extensive criminal record – psychological health complications – past addiction and substance abuse – imputed with being an informant or spy on behalf of the Sri Lankan authorities – applicant had provided conflicting, inconsistent and contradictory information over time – Tribunal is not satisfied that the applicant is at risk of serious harm –credibility concerns – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 5, 36, 56, 57, 65, 189, 420, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZRSN v MIAC [2013] FCA 751
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 Home Affairs on 1 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visa on 11 January 2022. The delegate refused to grant the visa on the basis that the delegate did not find the applicant’s claims to be credible, and that he did not have a genuine fear in returning to Sri Lanka.
The applicant appeared before the Tribunal on 4 May 2022 to give evidence and present arguments. This hearing was adjourned.
A resumed hearing was held on 7 July 2022. This hearing was adjourned.
A subsequent and third hearing was held on 18 July 2022.
The evidence at each hearing was provided via an audio-visual platform between the Tribunal’s Melbourne facilities and facilities at the Christmas Island Immigration Detention Centre (CI-IDC).
Each hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was not represented by a registered migration agent or legal practitioner throughout this application for review.
Criteria for a protection visa
The criteria for a…

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 2202883 (Refugee)

Details

AGLC: 2202883 (Refugee) [2022] AATA 4149
Case: [2022] AATA 4149
Decision Date: 28 September 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Sri Lankan national. The applicant claimed to be at risk of serious harm due to his long-term involvement with the United National Party, his witnessing of a serious crime, and the imputation that he was an informant for Sri Lankan authorities. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, including the refugee criterion under s 36(2)(a) and the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth).

The Tribunal was tasked with assessing the applicant's claims in light of his extensive criminal record, past addiction and substance abuse, psychological health complications, and the provision of conflicting and inconsistent information over time. The Tribunal was also required to consider relevant Ministerial Directions, including Ministerial Direction No. 84, and country information from the Department of Foreign Affairs and Trade. The central legal issue was whether there were substantial grounds for believing that the applicant faced a real risk of significant harm if removed from Australia.

The Tribunal concluded that the applicant's credibility was a significant concern due to the inconsistencies in his statements. It found that the applicant had voluntarily returned to Sri Lanka and had an extensive criminal record. Considering all the evidence, including the applicant's history and the country information, the Tribunal was not satisfied that the applicant was at risk of serious harm. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant claims to be born on [date] in Colombo, the capital city of Sri Lanka. The following identity documentary evidence was provided by the applicant to the Department:· An uncertified copy and translation of the Sri Lankan birth certificate of “[name]”, born on [date]. This document was registered on [date];· An uncertified and untranslated copy of a Sri Lanka National identity card;· An uncertified copy of a driver’s licence issued by the Victorian authorities in the name of “[name]”, date of birth [date]; expiring [in] September 2014;· A certified copy of a letter [issued] by [a named Medical Officer] and two scientists. This letter is dated 23 January 2015 and it confirms that the applicant “[name deleted] (Sri Lanka passport Number [deleted]) is the biological father of [Mr A]” (for the purposes of this decision, [Mr A] is to be referred to as the applicant’s son or the applicant’s biological son).· An uncertified copy of a Sri Lankan police clearance certificate issued [in] February 2016, which confirms that the applicant has not come to the adverse attention of the Sri Lanka police from [date] to [February] 2015;· An uncertified copy of a Sri Lankan Certificate of marriage between the applicant and “[Ms B]” ([Ms B] is to be referred to as the applicant’s third wife or spouse for the purposes of this decision). The document states that the marriage took place [in] January 2015. An uncertified copy of the Certificate of Marriage is also provided in Sinhala;· An uncertified copy of the Sri Lankan Citizenship Certificate of the applicant’s child. This document identifies the applicant as the child’s father, and the child’s nationality as Sri Lankan. This document was issued [in] September 2020;· A certified copy of the birth certificate pertaining to the applicant’s son issued by the Births, Deaths and Marriages Registry in the State of Victoria. This document indicates the applicant as the person to whom the birth certificate was issued [in] April 2013.Applicant’s first visit to Australia Prior to his successful student visa application, the applicant unsuccessfully applied for an Australian visitor visa in 2007. The applicant was, nonetheless, granted a Class TU Subclass 573 Student visa on 23 June 2008 for the purposes of higher education. He arrived in Australia [in] June 2008. At the time, the applicant was married to his first wife.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant claims to be born on [date] in Colombo, the capital city of Sri Lanka. The following identity documentary evidence was provided by the applicant to the Department:· An uncertified copy and translation of the Sri Lankan birth certificate of “[name]”, born on [date]. This document was registered on [date];· An uncertified and untranslated copy of a Sri Lanka National identity card;· An uncertified copy of a driver’s licence issued by the Victorian authorities in the name of “[name]”, date of birth [date]; expiring [in] September 2014;· A certified copy of a letter [issued] by [a named Medical Officer] and two scientists. This letter is dated 23 January 2015 and it confirms that the applicant “[name deleted] (Sri Lanka passport Number [deleted]) is the biological father of [Mr A]” (for the purposes of this decision, [Mr A] is to be referred to as the applicant’s son or the applicant’s biological son).· An uncertified copy of a Sri Lankan police clearance certificate issued [in] February 2016, which confirms that the applicant has not come to the adverse attention of the Sri Lanka police from [date] to [February] 2015;· An uncertified copy of a Sri Lankan Certificate of marriage between the applicant and “[Ms B]” ([Ms B] is to be referred to as the applicant’s third wife or spouse for the purposes of this decision). The document states that the marriage took place [in] January 2015. An uncertified copy of the Certificate of Marriage is also provided in Sinhala;· An uncertified copy of the Sri Lankan Citizenship Certificate of the applicant’s child. This document identifies the applicant as the child’s father, and the child’s nationality as Sri Lankan. This document was issued [in] September 2020;· A certified copy of the birth certificate pertaining to the applicant’s son issued by the Births, Deaths and Marriages Registry in the State of Victoria. This document indicates the applicant as the person to whom the birth certificate was issued [in] April 2013.Applicant’s first visit to Australia Prior to his successful student visa application, the applicant unsuccessfully applied for an Australian visitor visa in 2007. The applicant was, nonetheless, granted a Class TU Subclass 573 Student visa on 23 June 2008 for the purposes of higher education. He arrived in Australia [in] June 2008. At the time, the applicant was married to his first wife. The visa permitted the applicant to remain in Australia until 15 March 2012. His visa expired on that date and he subsequently became an unlawful non-citizen. The applicant returned to Sri Lanka in 2008 for the claimed reason of the birth of his second child. The applicant came to Australia to study for a [a qualification] in Melbourne, to be followed by a [degree] at the same college. His enrolment in the [first qualification] was deferred and the applicant explained to the Tribunal that he had returned to Sri Lanka for about three weeks because his then wife had a child (he and his then wife later divorced). The applicant did not return to [the college] and later, on 7 April 2009, his enrolment was cancelled.[1] [1] This is outlined in Decision Record 1213106

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant claims to be born on [date] in Colombo, the capital city of Sri Lanka. The following identity documentary evidence was provided by the applicant to the Department:· An uncertified copy and translation of the Sri Lankan birth certificate of “[name]”, born on [date]. This document was registered on [date];· An uncertified and untranslated copy of a Sri Lanka National identity card;· An uncertified copy of a driver’s licence issued by the Victorian authorities in the name of “[name]”, date of birth [date]; expiring [in] September 2014;· A certified copy of a letter [issued] by [a named Medical Officer] and two scientists. This letter is dated 23 January 2015 and it confirms that the applicant “[name deleted] (Sri Lanka passport Number [deleted]) is the biological father of [Mr A]” (for the purposes of this decision, [Mr A] is to be referred to as the applicant’s son or the applicant’s biological son).· An uncertified copy of a Sri Lankan police clearance certificate issued [in] February 2016, which confirms that the applicant has not come to the adverse attention of the Sri Lanka police from [date] to [February] 2015;· An uncertified copy of a Sri Lankan Certificate of marriage between the applicant and “[Ms B]” ([Ms B] is to be referred to as the applicant’s third wife or spouse for the purposes of this decision). The document states that the marriage took place [in] January 2015. An uncertified copy of the Certificate of Marriage is also provided in Sinhala;· An uncertified copy of the Sri Lankan Citizenship Certificate of the applicant’s child. This document identifies the applicant as the child’s father, and the child’s nationality as Sri Lankan. This document was issued [in] September 2020;· A certified copy of the birth certificate pertaining to the applicant’s son issued by the Births, Deaths and Marriages Registry in the State of Victoria. This document indicates the applicant as the person to whom the birth certificate was issued [in] April 2013.Applicant’s first visit to Australia