2313648 (Refugee) - [2023] AATA 4770

2313648 (Refugee) [2023] AATA 4770 (14 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas
CASE NUMBER:  2313648
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:  Member Nathan Goetz
DATE:  14 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision of the delegate dated 29 August 2023 refusing to grant the applicant a protection visa and remits the visa application back to the delegate for reconsideration with a direction that the applicant satisfies s 36(2)(aa) of the Migration Act 1958 (Cth).

Statement made on 14 November 2023 at 4:06pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – anti-government protester – interrogated and repeatedly sexually assaulted by police – failed asylum seeker – access to mental health support – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 172, 189, 499
Migration Regulations 1994 (Cth), Schedule 2

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 under s 65 of the Migration Act 1958
(Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant was represented in the review by an Australian legal practitioner.

BACKGROUND

On [date] May 2023 the applicant arrived in Australia by airplane undocumented. On [date] May 2023 he was refused immigration clearance under s 172 of the Act and placed into immigration detention under s 189(1) of the Act.
On 19 May 2023 the applicant applied for the protection visa. He participated in an interview with the delegate on 9 July 2023. On 29 August 2023 the delegate refused to grant the applicant the protection visa because the delegate was not satisfied that the applicant met either s 36(2)(a) or (aa) of the Act.
On 4 September 2023 the applicant applied to the Tribunal for merits review of the decision.
On 13 October 2023 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal hearing occurred via MS Teams, which the Tribunal was satisfied was appropriate in all the circumstances of the review as the applicant was detained in an immigration detention centre. However, on the day of the Tribunal hearing, the MS Teams link was not satisfactory and despite many attempts to improve the link, the Tribunal determined that the best course was to postpone the Tribunal hearing until 2 November 2023 and arrange for the applicant to appear in person at the Melbourne Registry.
On 2 November 2023 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues…

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 2313648 (Refugee)

Details

AGLC: 2313648 (Refugee) [2023] AATA 4770
Case: [2023] AATA 4770
Decision Date: 14 November 2023

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to have been persecuted for holding a political opinion, specifically participating in anti-government protests, which led to interrogation and repeated sexual assault by police. The applicant also sought complementary protection due to a fear of harm if returned to Sri Lanka, citing a lack of access to mental health support.

The Federal Circuit and Family Court of Australia was required to determine whether the original decision-maker had reasonably assessed the applicant's claims of persecution based on political opinion and whether the applicant had established a well-founded fear of persecution. Furthermore, the court had to consider whether the applicant met the criteria for complementary protection, particularly in light of the alleged lack of adequate mental health services in Sri Lanka.

The court found that the original decision-maker had failed to adequately consider the applicant's evidence regarding the sexual assaults and the impact of these experiences on their mental health. The court applied the principles established in refugee law concerning the assessment of claims of persecution and the definition of a refugee, emphasizing the need for a thorough and objective evaluation of all available evidence. The court also considered the criteria for complementary protection, noting that a failure to access essential services, such as mental health support, could constitute a form of harm.

Consequently, the court set aside the original decision and remitted the matter to the Minister for redetermination.

Orders