2405713 (Refugee) - [2024] AATA 3985

2405713 (Refugee) [2024] AATA 3985 (13 August 2024)

DECISION RECORD

DIVISION:

Migration & Refugee Division

REPRESENTATIVES:

Ms Clare Hughes (until 11 August 2024)

Mr Galen Jaffurs (from 11 August 2024)

CASE NUMBER:

2405713

COUNTRY OF REFERENCE:

Sri Lanka

MEMBER:

Fraser Robertson

DATE:

13 August 2024

PLACE OF DECISION:

Perth

DECISION:

1. The Tribunal sets aside the decision of the delegate and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.

2. The Tribunal notes that an assessment in respect of s 36(1C) of the Act is required in respect of the applicant.

Statement made on 13 August 2024 at 1:31pm

STATEMENT OF DECISION AND REASONS
INTRODUCTION

The applicant is a [Age]-year-old male from Sri Lanka who first arrived in Australia as a [Age]-year-old boy. As an adult, the applicant has been convicted of a number of offences and spent periods of his life in prison. Most recently, the applicant was sentenced to a term of 5 months in prison for convictions relating to failing to comply with a supervision order made under the Serious Sex Offenders (Detention and Supervision Act) 2009 (Vic).
Whilst in custody, the applicant's Class BB Subclass 155 Resident Return Visa ('RRV') was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the 'Act'). Upon cancellation, the applicant became an unlawful non-citizen. When his term of imprisonment ended in July 2015, the applicant was detained as an unlawful non-citizen and transferred to immigration detention. He has remained in immigration detention ever since.
In March 2017, the applicant's request for revocation of the cancellation of his RRV was personally refused by the Assistant Minister for Immigration and Border Protection ('Non-Revocation Decision'). The Assistant Minister determined that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation of the applicant's RRV.
The applicant sought judicial review of the Non-Revocation Decision. That application was dismissed by the Federal Court of Australia. An appeal was dismissed by the Full Federal Court of Australia. The applicant unsuccessfully sought special leave to appeal to the High Court of Australia.
The applicant applied for a protection visa in July 2022. The applicant was not interviewed by the Department but was invited on multiple occasions to provide additional evidence and submissions relating to his claims for protection. The applicant responded to some, but not all, of those requests.
In March 2024, a delegate of the Minister for Home affairs refused to grant the applicant a protection visa. Essentially, the delegate concluded that the applicant did not satisfy the criteria for the grant of a protection visa because he did not face a real chance of serious harm, or a real risk of significant harm if he were returned to Sri Lanka.
The applicant has sought review of the decision of the delegate to refuse to grant him a protection visa. The applicant was represented in respect of the review application by…

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.

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Details

Case: [2024] AATA 3985
Decision Date: 13 August 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse to grant a protection visa to a Sri Lankan national. The applicant, who migrated to Australia as a child, had developed significant cognitive impairments and mental health conditions, leading to criminal offences, imprisonment, and the cancellation of his resident return visa. He had resided in Australia for a long period, converted to Christianity, and had no family or support in Sri Lanka. The applicant sought review of the delegate's decision that he did not face a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether he was a refugee due to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also noted that a separate assessment under section 36(1C) of the Act, relating to the applicant's character, was required but was not before it.

The Tribunal found that the applicant was a refugee and remitted the application to the Department with a direction that the applicant satisfied section 36(2)(a) of the Act. This conclusion was based on extensive reports from practitioners, country information regarding Sri Lanka's political and economic conditions, the quality and accessibility of health services, and societal stigma. The Tribunal considered the applicant to be a member of a particular social group of persons suffering from significantly impaired functioning, and that any persecution would involve systematic and discriminatory conduct. The Tribunal expressed no view on whether the applicant satisfied section 36(1C) of the Act, as that question was not before it.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In March 2017, the applicant's request for revocation of the cancellation of his RRV was personally refused by the Assistant Minister for Immigration and Border Protection ('Non-Revocation Decision'). The Assistant Minister determined that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation of the applicant's RRV. The applicant sought judicial review of the Non-Revocation Decision. That application was dismissed by the Federal Court of Australia. An appeal was dismissed by the Full Federal Court of Australia. The applicant unsuccessfully sought special leave to appeal to the High Court of Australia. The applicant applied for a protection visa in July 2022. The applicant was not interviewed by the Department but was invited on multiple occasions to provide additional evidence and submissions relating to his claims for protection. The applicant responded to some, but not all, of those requests. In March 2024, a delegate of the Minister for Home affairs refused to grant the applicant a protection visa. Essentially, the delegate concluded that the applicant did not satisfy the criteria for the grant of a protection visa because he did not face a real chance of serious harm, or a real risk of significant harm if he were returned to Sri Lanka. The applicant has sought review of the decision of the delegate to refuse to grant him a protection visa. The applicant was represented in respect of the review application by Refugee Legal, initially by Ms Clare Hughes ('Ms Hughes') and from 11 August 2024 by Mr Galen Jaffurs ('Mr Jaffurs'). I am grateful for their submissions which has assisted me in determining this application. Following a case management hearing on 29 April 2024, the applicant attended hearings before the Tribunal on 11 June 2024, 15 July 2024 and 12 August 2024. Based on the evidence and submissions before me, I have found that the applicant is a refugee and will remit the application to the Department with a direction that the applicant satisfies s 36(2)(a) of the Act. Having reached that conclusion, I have endeavoured to produce these reasons as quickly as was practicable in circumstances where the applicant is presently detained. This conclusion does not mean that the applicant will necessarily be granted a protection visa. The applicant's criminal record is such that before he can be granted a visa, he must still satisfy s 36(1C) of the Act. No assessment has been made of whether the applicant satisfies s 36(1C) of the Act. That question is not before me, and I express no views or conclusions about whether the applicant satisfies, or does not satisfy, s 36(1C) of the Act. These are my reasons for concluding that the applicant satisfies s 36(2)(a) of the Act.RELEVANT LAW The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).

Ratio Decidendi

Legal Principle Established

The Tribunal notes that an assessment in respect of s 36(1C) of the Act is required in respect of the applicant.Fraser RobertsonMemberATTACHMENT – EXTRACT FROM MIGRATION ACT 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally

DIVISION:	Migration & Refugee Division
REPRESENTATIVES:	Ms Clare Hughes (until 11 August 2024) Mr Galen Jaffurs (from 11 August 2024)
CASE NUMBER:	2405713
COUNTRY OF REFERENCE:	Sri Lanka
MEMBER:	Fraser Robertson
DATE:	13 August 2024
PLACE OF DECISION:	Perth
DECISION:	1. The Tribunal sets aside the decision of the delegate and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act. 2. The Tribunal notes that an assessment in respect of s 36(1C) of the Act is required in respect of the applicant.
Statement made on 13 August 2024 at 1:31pm