2205848 (Refugee) - [2024] AATA 2655

2205848 (Refugee) [2024] AATA 2655 (26 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Shamili Kugathas
CASE NUMBER: 2205848

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Louise Nicholls
DATE:26 June 2024
PLACE OF DECISION: Sydney
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 26 June 2024 at 3:52pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – race – Tamil – imputed political opinion – advocating for Tamil fishermen – assistance to the Liberation Tigers of Tamil Eelam – threats from security services – illegal departure – war crimes evidence to the United Nations – political activities in Australia – fear of torture – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 19A
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZGUR (2011) 241 CLR 594
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
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

The applicant claims to be a citizen of Sri Lanka and he is [age] years old. He was born in a village in Sri Lanka. He came to Australia by boat as an illegal maritime arrival (IMA) [in] June 2012.
Procedural History
The applicant stated that he departed Sri Lanka by boat and travelled directly to Christmas Island. The boat on which the applicant was travelling was intercepted by Australian authorities and the applicant was detained [in] June 2012. He attended an entry interview on 15 August 2012.
The applicant applied for a protection visa on 1 November 2012.
The applicant attended an interview with an officer from the Department of Immigration and Border Protection on 13 August 2013 with the applicant’s representative and a Tamil interpreter present.
On 27 February 2014 a delegate of the Minister for Department of Immigration and Border Protection refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 5 March 2014. The application was made to the Refugee Review Tribunal, as it was then.
On 24 March 2015 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicant sought judicial review of that decision and on 26 May 2016 the Federal Circuit Court quashed the decision and directed the Tribunal[1] to determine the application according to law. The Court found that the Tribunal had not properly dealt with one of the applicant’s claims for protection, that…

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 2205848 (Refugee)

Details

AGLC: 2205848 (Refugee) [2024] AATA 2655
Case: [2024] AATA 2655
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Sri Lankan national of Tamil ethnicity. The applicant claimed he faced persecution upon return to Sri Lanka due to his political opinions and activities, including his role in advocating for Tamil fishermen and his alleged past involvement with the Liberation Tigers of Tamil Eelam (LTTE). The case came before the Tribunal following a remittal from the Federal Court.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under the relevant legislation, and if not, whether he was entitled to complementary protection. Specifically, the Tribunal was required to assess the credibility of the applicant's claims regarding threats from Sri Lankan security services and Sinhalese fishermen, and his alleged past association with the LTTE, including providing evidence of war crimes to the United Nations. The Tribunal also needed to consider the applicant's updated claims based on his activities and experiences in Australia.

The Tribunal considered the applicant's personal history, his claims of persecution stemming from his objections to government fishing policies, and his more recent assertions of significant involvement with the LTTE's Sea Tigers division. The Tribunal noted that while the applicant's identity and nationality were not in dispute, the credibility and substance of his claims required careful evaluation. The Tribunal acknowledged the applicant's difficulties in articulating his claims due to his limited education, trauma from the civil war, and lack of access to mental health support in Australia. The Tribunal also considered the evidence presented regarding the applicant's family in Sri Lanka and their continued engagement in fishing, which was relevant to assessing the risk of future harm.

The decision under review was remitted to the Tribunal. The Tribunal was satisfied that the applicant was a citizen of Sri Lanka and that Sri Lanka was the receiving country for the purposes of the Act. The Tribunal's final determination on the protection visa application and any entitlement to complementary protection was not detailed in the provided text.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is the receiving country for the purpose of s.36(2)(aa) of the Act.Background The applicant is an ethnic Tamil from the village of [Town 1], [District 1] in the northeastern coastal area of Sri Lanka. The applicant is a Christian. He lived all his life in [District 1] until he departed Sri Lanka in 2012. He left school in [grade] and generally worked as a fisherman until he left Sri Lanka. The applicant lost his wife and son, his parents and [number] other family members in the tsunami of 2004. After the tsunami he lived in a temporary shelter in [Town 2] until he returned to [District 1] with his [remaining] siblings in 2007. The applicant told the Tribunal at the hearing he has [specified family members]. He has one brother living in Australia and one brother living in [District 1] and working as a local fisherman. His brother lost his wife and children in the 2004 tsunami and has since remarried. [One] sister lives in [District 1] and her husband is a fisherman. The applicant has been living in Australia for 12 years. Earlier he worked in a factory [role specified] but because of his visa problems has not been able to work in recent years. He was initially living in Adelaide and then came to Sydney in 2015. He is living with friends in a shared house in Sydney. His [brother] helps him with financial support. He spends his time cooking for his friends, he calls his sister and visits other Tamil organisations where he spends some time talking with other Tamils.What are the applicant’s claims? The applicant’s claims are set out in the statement dated 15 October 2012 accompanying the application for protection. The applicant discussed his claims for protection with the delegate at an interview on 13 August 2013. The applicant has had a number of different representatives since 2012 and they have all made written submissions on the applicant’s claims which have included a discussion of the claims as well as country information. The applicant gave evidence at a RRT hearing held on 13 March 2015. The Tribunal has considered a transcript of the evidence given on that date. On 9 April 2024 the applicant gave an updated statement referring to his earlier claims and his current claims based on his activities in Australia. The applicant gave further oral evidence concerning his claims at the Tribunal hearing held on 16 May 2024. Initially the applicant claimed if he returned to Sri Lanka he faced serious harm from the Sri Lankan CID and Sinhalese fishermen because he was a Tamil fisherman who had been [an official 1] of the [Association 1] and had spoken out in a meeting of Tamil fishermen in his local area against the Sri Lankan government decision to issue fishing permits to Sinhalese fishermen. Following the meeting the CID called him to their local camp and one of the officials threatened him with a gun and told him to cease his objections. As he had been threatened and the situation for Tamil fishermen was getting worse, he decided to leave Sri Lanka when the opportunity arose in June 2012.

Evidence

Evidence Before The Court

While the application for review was remitted on the basis that two previous Tribunal members had not considered the applicant’s claim that his livelihood as a fisherman was at risk if he returned to Sri Lanka the Tribunal has not specifically considered this claim. It did not arise in the material provided to the Tribunal in 2024 and while the claim was not withdrawn, there was little evidence before the Tribunal to support such a claim. Given that the current evidence of the applicant that his Sri Lankan [relatives] were engaged in fishing in the [District 1] area, it appears that it would be difficult to make out that claim projecting into the future.Evidence and claims In the applicant’s initial statement he sets out his personal history, some events which took place during the civil conflict in Sri Lanka between 2007 and 2009, details of his detention in a camp in [camp 1] IDP camp and interrogation by CID[5] while in the camp, claims about his role in the local fisherman’s [group] and conflict with authorities and Sinhalese fishermen over his objection to the grant of fishing licences to Sinhalese fishermen.[5] Criminal Investigation Department of the Sri Lankan Police. In the applicant’s evidence to the RRT the applicant gave evidence about his family in Sri Lanka, his role in the local fishing [group] and fisherman’s organisation, the demands made of the applicant and other Tamils in the [District 1] area by the LTTE, his time in the IDP camp and return to [District 1], his role in a meeting arranged by the Army to discuss fishing licences, his repeated questioning at the local CID office and his resignation as [official 1] of a [association]. In the statement made on 9 April 2024 the applicant provided an updated statement setting out his current claims. The applicant stated that he relied on all claims previously raised by him. He stated that he only studied up to [grade] and found it difficult to present his claims for protection. He also stated that he has suffered anxiety and tension which has interfered with the ability to present his claims. He stated that he originates from [District 1] which was an LTTE stronghold during the civil war. He stated that it had been 12 years since he departed Sri Lanka and his memory of Sri Lanka was not entirely clear. Memories of what he witnessed during the war continued to haunt and traumatise him. Given his visa status he has not been able to access Medicare and the psychological help he requires. He experiences bouts of severe loneliness and depression and often feels suicidal. He seeks to provide clarification of his initial statement and provide more details about the work he carried out for the LTTE as [official 1] of the [association]. He stated he was appointed [official 1] in 2004. As [official 1] of the [association] he worked closely with the Sea Tigers division of the LTTE. After he lost his family members he spent a majority of his time with the LTTE. He organised boats for them, he organised persons to help unload the boats, persons to act as sentries at the LTTE bases and build LTTE bunkers. He also worked as a sentry at bases in [District 1]. He worked closely with various leaders of the Sea Tigers division and named those persons. He also helped during memorial events and celebrations.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Tribunal has before it an affidavit filed in the Federal Circuit Court (as it was) on 24 May 2017 which sets out some details of the applicant’s claims as well as procedural information.CONSIDERATION The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. The relevant law is set out in the attachment.Country of reference The applicant claims he was born in, and is a citizen of, Sri Lanka. He provided copies of his Sri Lankan identity card and marriage certificate and other identity documents. He has consistently claimed that he is of Sri Lankan nationality, he spoke Tamil fluently and he was familiar with the geography and culture of the northern area of Sri Lanka. Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is the receiving country for the purpose of s.36(2)(aa) of the Act.Background The applicant is an ethnic Tamil from the village of [Town 1], [District 1] in the northeastern coastal area of Sri Lanka. The applicant is a Christian. He lived all his life in [District 1] until he departed Sri Lanka in 2012. He left school in [grade] and generally worked as a fisherman until he left Sri Lanka. The applicant lost his wife and son, his parents and [number] other family members in the tsunami of 2004. After the tsunami he lived in a temporary shelter in [Town 2] until he returned to [District 1] with his [remaining] siblings in 2007. The applicant told the Tribunal at the hearing he has [specified family members]. He has one brother living in Australia and one brother living in [District 1] and working as a local fisherman. His brother lost his wife and children in the 2004 tsunami and has since remarried. [One] sister lives in [District 1] and her husband is a fisherman. The applicant has been living in Australia for 12 years. Earlier he worked in a factory [role specified] but because of his visa problems has not been able to work in recent years. He was initially living in Adelaide and then came to Sydney in 2015. He is living with friends in a shared house in Sydney. His [brother] helps him with financial support. He spends his time cooking for his friends, he calls his sister and visits other Tamil organisations where he spends some time talking with other Tamils.What are the applicant’s claims? The applicant’s claims are set out in the statement dated 15 October 2012 accompanying the application for protection. The applicant discussed his claims for protection with the delegate at an interview on 13 August 2013. The applicant has had a number of different representatives since 2012 and they have all made written submissions on the applicant’s claims which have included a discussion of the claims as well as country information. The applicant gave evidence at a RRT hearing held on 13 March 2015. The Tribunal has considered a transcript of the evidence given on that date.