2305126 (Refugee) - [2024] AATA 4072

2305126 (Refugee) [2024] AATA 4072 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas
CASE NUMBER:  2305126
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Louise Nicholls
DATE:11 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 11 September 2024 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Court remittal – ethnicity and imputed political opinion – Tamil suspected as member of LTTE – pressured to join and extorted – threatened after giving evidence against members of Karuna group – illegal departure, unauthorised maritime arrival and returned failed asylum seeker – perceived as wealthy after working in another country and Australia – inconsistent evidence – passage of time and multiple questionings – no actual harm – political social media activities and tattoo in Australia conducted solely to strengthen claim – country information – Karuna group members protected by authorities at the time and now part of political process – LTTE no longer active – procedures for returnees – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 19A(1), 19D(4), 36(2)(a), (aa), (2A), 65, 91R(1)(a)
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 is [Age] years old. He was born in the Batticaloa District, Sri Lanka. He arrived on Christmas Island by boat as an unauthorised maritime arrival [in] 2012. The applicant attended an entry interview on 18 August 2012.
The applicant applied for a protection visa on 19 November 2012.
The applicant attended an interview at the Department of Immigration and Citizenship on 9 May 2013. The Tribunal has reviewed a recording of the interview.
On 16 August 2013 a delegate of the Minister for Immigration and Citizenship 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.
The applicant sought review at the Refugee Review Tribunal (RRT) on 3 September 2013. The Tribunal differently constituted[1], (Tribunal 1) affirmed the decision under review on 27 June 2016. On 18 July 2016 the applicant applied for judicial review of the decision and the Federal Circuit Court, as it was then, dismissed the application for judicial review [in] 2020. [In] 2023 the Federal Court of Australia allowed the applicant’s appeal and ordered that the Tribunal’s decision be set aside, and the matter remitted to the Tribunal to be determined according to law.
[1] On 1 July 2015 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 2305126 (Refugee)

Details

AGLC: 2305126 (Refugee) [2024] AATA 4072
Case: [2024] AATA 4072
Decision Date: 11 September 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 feared serious harm upon return to Sri Lanka due to his ethnicity, a past suspicion of LTTE membership, and his provision of evidence against members of the Karuna group. He also claimed fear of harm due to perceptions of wealth and as an illegal maritime arrival and failed asylum seeker. The Administrative Appeals Tribunal (Tribunal) was required to determine whether the applicant met the refugee criterion under section 36(2) of the Migration Act 1958 (Cth) or, alternatively, the complementary protection criterion under section 36(2)(aa).

The Tribunal considered the applicant's claims in light of country information regarding the situation in Sri Lanka, particularly the activities of the Karuna group and the LTTE, and the procedures for returnees. The Tribunal noted inconsistencies in the applicant's evidence over time and across multiple questionings, and found that his political social media activities and tattoo in Australia appeared to have been undertaken solely to strengthen his claim. The Tribunal also considered that the Karuna group members were protected by authorities at the time of the alleged events and were now part of the political process, and that the LTTE was no longer active.

The Tribunal was satisfied that the applicant was a Sri Lankan citizen and that Sri Lanka was the receiving country. However, it found that the applicant had not established a well-founded fear of persecution. The Tribunal concluded that the applicant had not demonstrated that he would suffer serious harm, as defined by the Act, upon return to Sri Lanka. 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

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 In the statutory declaration made in 2012 the applicant stated he was born in [Year] in the village of [Village] [5] in the Batticaloa District of Sri Lanka. He is of Tamil ethnicity and a Hindu. His parents, [sisters], one of his brothers, wife and son live in the village in Sri Lanka. The applicant’s father was a Hindu priest and his mother worked in the home. They also had a farm. [5] [Village – full name] At the Tribunal hearing in 2024 the applicant stated that he was born in [Village], Batticaloa. His parents are living in the village and his father is a Hindu priest and his mother was not employed. He told he Tribunal he had [brothers] in Sri Lanka and one brother living in [Country 1] and [sisters] living in Sri Lanka. He finished school in Year 8 because of the disruption of the civil war in Sri Lanka. He is married and he has one son who is [Age] years old and is attending school. He speaks to his wife and son regularly. His wife and son live with her parents in a different village to his family. His brother and sisters live near his parents; his sister works in the [workplace] and his brothers are rural farm workers. What are the applicant’s claims? The applicant’s claims are set out in the statutory declaration dated 15 November 2012 accompanying the application for protection. The applicant discussed his claims for protection with the delegate at an interview on 9 May 2013. The claims for protection were expanded on in further statements made on 23 July 2014 and 11 April 2024. The applicant gave oral evidence concerning his claims at Tribunal hearings held in July 2014, in June 2016 and most recently on 18 April 2024. The applicant has had several different representatives throughout the application and review process. His representatives have respectively made submissions on matters of fact and law as well discussing various items of country information. His current representative stated that the applicant maintained his previous claims, but he also made new claims based on his conduct in Australia. Initially the applicant claimed if he returned to Sri Lanka, he would face serious harm from one of the many government, political or military groups operating in the area because he is a Tamil and would also have been suspected of being a member of the LTTE. He particularly feared members of the Karuna group (TMVP) because he had given evidence in court against members of the group who had taken his motorbike and used it in a robbery in 2010. He also claimed he feared being targeted because of perceptions that he was rich because he had worked in [Region] and Australia. He also left Sri Lanka illegally and feared being harmed by government authorities on return to Sri Lanka as an illegal departee and a failed asylum seeker.

Evidence

Evidence Before The Court

Country information on the situation in Batticaloa in 2010 and 2011 indicates that the Karuna group did have a role in security in those years[9] but later information as set out above indicates that its role has significantly changed and it has ceased its paramilitary activities.[9] 'The Tamil Makkal Viduthalai Pulikal (TMVP) and Karuna factions; their relationship with each other; reports concerning their treatment of Sinhalese and Tamil citizens; whether they are still active as paramilitary groups', Canada: Immigration and Refugee Board of Canada (IRB), 17 February 2012 Evidence and findings The applicant has consistently stated and given evidence in his written and oral evidence that he is a Tamil male who was born in the Batticaloa area, and the Tribunal accepts this evidence. Batticaloa District is located in the east of Sri Lanka in the Eastern Province of Sri Lanka. It has a predominantly Tamil population [10].[10] "Area of Sri Lanka by province and district" (PDF). Statistical Abstract 2011. Department of Census & Statistics, Sri Lanka. The Tribunal accepts the applicant is married and has one [Age] year son and that his wife and son are living in [Town] in the Batticaloa District of Sri Lanka.The applicant’s experiences during the civil war The applicant has provided evidence in his previous written statements and his statutory declaration and at his Tribunal hearings regarding his experiences during the civil war in Sri Lanka. In his statutory declaration made in 2012 he claimed that in 1993 at the age of [Age] he and his family were forced to relocate due to bombings in their village. They sought shelter in schools, temples, and civilian centres. They would return home and flee once again if there was another attack. The applicant’s education was disrupted, he only attended school until Year 8. His parents were too afraid to send him to a school in another area, so he began working on his family’s rice farm. In 1999 at the age of [Age], the LTTE[11] came to his family’s home and tried to force the applicant to join them. Messengers would come to his house and his parents would hide him. The LTTE told his parents that they had to contribute money or a person to the LTTE movement. His parents had no money. Because of this, the LTTE took his mother to a camp on two occasions and held her for a week each time. The LTTE continued to send messengers to his house. [11] Liberation Tigers of Tamil Eelam (LTTE) His parents were fearful that the applicant would be taken by force and killed if he joined the LTTE. His parents did not support the LTTE and in 2001, his parents decided to send him overseas. He obtained a work visa and went to [Country 1]. He did not return home until 2007, when it was more peaceful. When he returned home, he was asked to sign in every week at the Sri Lankan Army’s Special Task Force camp. He did this for two weeks. After that, he was asked to pay a bribe of food and alcohol and after he paid the bribe he did not need to sign in anymore.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. 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 a protection 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 the applicant 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’). ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

Ratio Decidendi

Legal Principle Established

The applicant provided several documents with his protection visa application and application for review, including:Departmental file [number]·Applicant’s statutory declaration made on 15 November 2012.·Copy of applicant’s marriage certificate and photograph with wife and child.·Copy of applicant’s Sri Lankan driver’s licence.·Copy of applicant’s [Country 1] Driver’s licence.·Copy of the biodata page of the applicant’s Sri Lankan passport.·Copy of the applicant’s Sri Lankan birth certificate. ·Copies of several untranslated documents and English translations.·Submissions made by the applicant’s representative dated 5 June 2013.Tribunal file 1312976·Submissions made by the applicant’s representative dated 22 July 2014.·Statement made by the applicant dated 23 July 2014.·Submissions made by the applicant’s representative dated 15 August 2014.·Extract from Information Book Batticaloa Police Station dated [December] 2013 and English translations. ·Documents from the Batticaloa Magistrate’s Court and English translations.·Submissions made by applicant’s representative 24 May 2016.Tribunal file 2305126·Statement made by the applicant on 9 April 2024.·Submissions made by the applicant’s representative on 11 April 2024.·Outline of submissions dated 30 January 2023 and made to the Federal Court of Australia. ·Several [Social media 1] posts in the name of [Mr A] from 2019 to 2023.·Photo of the applicant pictured with an LTTE emblem on his [body part]. 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 a copy of his Sri Lankan passport as well as several other identity documents. He has consistently claimed that he is of Sri Lankan nationality, he spoke Tamil fluently and appeared to be familiar with the geography and culture of the Batticaloa 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 In the statutory declaration made in 2012 the applicant stated he was born in [Year] in the village of [Village] [5] in the Batticaloa District of Sri Lanka. He is of Tamil ethnicity and a Hindu. His parents, [sisters], one of his brothers, wife and son live in the village in Sri Lanka. The applicant’s father was a Hindu priest and his mother worked in the home. They also had a farm. [5] [Village – full name] At the Tribunal hearing in 2024 the applicant stated that he was born in [Village], Batticaloa. His parents are living in the village and his father is a Hindu priest and his mother was not employed. He told he Tribunal he had [brothers] in Sri Lanka and one brother living in [Country 1] and [sisters] living in Sri Lanka.