2311207 (Refugee) - [2023] AATA 4591

2311207 (Refugee) [2023] AATA 4591 (14 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas
CASE NUMBER:  2311207
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:  Nicole Burns
DATE:  14 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(aa) of the Migration Act 1958 (Cth).

Statement made on 14 November 2023 at 2:16pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – complementary protection – divorced Tamil woman with no family support – sexually assaulted, harassed and threatened by a local shop owner – cruel or inhuman treatment or punishment – degrading treatment or punishment – state protection – internal relocation – lack of family support and networks – psychologically vulnerable – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505

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 26 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 May 2023.
The applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments about the issues in her case. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative participated in the hearing via video link from NSW, where she resides.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to…

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 2311207 (Refugee)

Details

AGLC: 2311207 (Refugee) [2023] AATA 4591
Case: [2023] AATA 4591
Decision Date: 14 November 2023

CaseChat Overview and Summary

The applicant, a divorced Tamil woman from Sri Lanka, sought a protection visa, alleging she had been sexually assaulted, harassed, and threatened by a local shop owner. The applicant contended that these experiences, coupled with her lack of family support and psychological vulnerability, amounted to cruel, inhuman, or degrading treatment or punishment, and that she would not receive adequate state protection in Sri Lanka, nor could she safely relocate internally. The decision under review was made by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

The primary legal issues before the court were whether the applicant had established that she would be subjected to cruel, inhuman, or degrading treatment or punishment for the purposes of the *Migration Act 1958* (Cth) if returned to Sri Lanka, and whether she could access effective protection from the Sri Lankan state or safely relocate internally. The court was required to consider the applicant's specific circumstances, including her gender, ethnicity, marital status, lack of family support, and psychological vulnerability, in assessing the risk of harm and the availability of state protection.

The court found that the delegate had failed to adequately consider the cumulative impact of the applicant's experiences and her vulnerabilities. It was held that the delegate's assessment of the risk of future harm and the availability of state protection was flawed, particularly in relation to the applicant's lack of social support networks and her psychological state. The court concluded that the delegate had not properly applied the principles of complementary protection, and that the decision under review was affected by jurisdictional error. Accordingly, the matter was remitted to the delegate for redetermination according to law.

Orders