2446759 (Refugee) - [2025] ARTA 1435

2446759 (REFUGEE) [2025] ARTA 1435 (27 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2446759
Tribunal:General Member S Nyabally
Date:27 March 2025

Place:Melbourne
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 27 March 2025 at 9:58am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit and Family Court remittal – arrived by air with false passport and placed in immigration detention – political opinion – family Tamil Tigers sympathisers and two brothers served – applicant’s participation in commemorative events and work for Tamil-language service – colleague killed and applicant detained, interrogated, beaten and threatened – released after father-in-law paid bribe – return after period in another country, and participation in public event while in hiding – circumstances of work, travel and participation – CCTV footage of attack provided – mental health – country information – monitoring of Tamil separatist activities and restrictions on media outlets – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5LA(2), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
AGA16 v MIBP [2018] FCA 628

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Subclass 790 Safe Haven Enterprise (Class XE) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant first arrived in Australia [in] October 2023 as an unauthorised air arrival, using a false Sri Lankan passport in the name [Alias]. He has not subsequently departed Australia and is currently detained in immigration detention.
The applicant applied for the protection visa on 3 November 2023. The delegate refused to grant the protection visa on 29 November 2023.
On 4 December 2023. the applicant applied to the (then) Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 14 March 2024 the AAT affirmed the delegate’s decision.
The applicant sought judicial review of the AAT’s decision on 16 April 2024. On 25 October 2024 the Federal Circuit and Family Court quashed the AAT’s decision and remitted the matter to the Administrative Review Tribunal for reconsideration.[1]
[1] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal 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 2446759 (Refugee)

Details

AGLC: 2446759 (Refugee) [2025] ARTA 1435
Case: [2025] ARTA 1435
Decision Date: 27 March 2025

CaseChat Overview and Summary

In the case of 2446759 (Refugee), the applicant, a citizen of Sri Lanka, sought a protection visa in Australia based on claims of persecution due to his family's ties to the Liberation Tigers of Tamil Eelam (LTTE) and his alleged political opinion. The Federal Circuit and Family Court was tasked with reviewing the delegate's decision, which had rejected the applicant's claims, and determining whether the application should be remitted for reconsideration. The applicant's claims included his participation in Tamil commemorative events, his employment with a Tamil-language service, and incidents of harassment by the Criminal Investigation Department (CID). The delegate had doubts about the credibility of the applicant's claims, particularly given his participation in a public event while in hiding.

The legal issues before the court centred on whether the applicant had a well-founded fear of persecution if returned to Sri Lanka, as required under the Migration Act. Key considerations included the credibility of the applicant's evidence, the nature of his activities and their potential to attract adverse attention from the Sri Lankan authorities, and the risk of harm if he were to return to Sri Lanka. The court had to assess the additional evidence presented by the applicant, including details about his work, the circumstances surrounding the death of his colleague, and the incidents of harassment and detention by the CID.

The court found that the Tribunal had not adequately considered the substantial additional evidence provided by the applicant. The court noted that the Tribunal's decision to place significant weight on the applicant's participation in a public event while in hiding was misplaced, as it did not take into account the full context of the applicant's situation and the risks he faced. The court concluded that the Tribunal should have given more weight to the evidence of the applicant's work in the media and his family's history with the LTTE. Given the errors in the Tribunal's approach, the court set aside the decision and remitted the application for reconsideration.

The court ordered that the applicant satisfies section 36(2)(a) of the Migration Act, which pertains to the criteria for a protection visa. The matter was to be reconsidered with due regard to the additional evidence and the correct legal principles. The court did not make any final orders on the grant of the protection visa but directed that the application be reassessed by the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant has provided a translated copy of his Sri Lankan birth certificate, and copies of the biodata pages of the Sri Lankan passport issued in his name.[5] There is no information before the Tribunal suggesting that he has a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of Sri Lanka, and that Sri Lanka is the receiving country and country of reference for the purposes of this review.[5] The Tribunal does not have a copy of the applicant’s bogus passport before it.The applicant’s personal background The applicant gave evidence that he was born in [Village], [Town]. He is one of [Number] siblings. [Some] of his sisters are deceased and [one] lives in [Village]. The applicant’s eldest brother, [Mr F], has been estranged from the family since the end of the civil war. The second brother, [Mr A], was granted a protection visa in Australia in 2017 and is now an Australian permanent resident. The applicant’s third brother, [Mr B], has sought asylum in [Country 2], and his fourth brother, [Mr G], has sought asylum in [Country 3]. The applicant and his family lived in [Town] until they were displaced at the end stages of the Sri Lankan civil war. The applicant, his parents, sister and [Mr G] were all detained in camps for about a year after the end of the war. They were permitted to return to [Village] in about 2010. [Mr B] was released from a military camp in 2013. After completing his O-levels in [Year] the applicant went to work in a shop with [Mr B]. He opened his own shop in 2018, selling [supplies] to other merchants. After closing his shop in 2020 the applicant retained 2 vehicles which he would rent. The rent from 1 vehicle was used for his living expenses, and the rent from the second vehicle was saved. The applicant is married. He and his wife married in 2019, and they have a [child] together. The applicant’s wife and child life with his wife’s parents in [Location], [Village]. The Tribunal accepts the above matters to be true.The applicant’s claims for protection As was noted above, the delegate did not accept the applicant’s claims about his work for [Employer 1], the death of [Mr C] or the June 2023 incident. The delegate also did not accept that the applicant was of ongoing interest to the Sri Lankan authorities because of his media work and/or political opinion. The delegate placed significant weight on the applicant’s decision to participate in [an event] while in hiding, which in their view suggested that the applicant knew he was of no particular interest to the Sri Lankan authorities. The Tribunal has the benefit of substantial additional evidence addressing the delegate’s concerns. In respect of the applicant’s work for [Employer 1], the applicant has provided further evidence about the nature of the position, his motivation to work as [an occupation 1], and why he could perform the job without formal [work sector] qualifications. The applicant explained that he was inspired to work in [work sector] to promote awareness of Tamil issues. He did not consider that the current situation for Tamils in Sri Lanka was fair or acceptable, and wanted to bring news of this to the international community. The applicant did not require the income, as he was earning money through the rental of his vehicles, but rather had an ambition to spread news about the Tamil cause to society. The applicant did not need formal [work sector] training to work for [Employer 1] as the website relied primarily on [materials] uploaded by its contributors. He would [produce the materials], edit them on [an app] then send them to the [website] via [messaging service]. He would be paid if the [website] chose to use the content. The content was not attributed to him specifically and would be taken down if the Sri Lankan government objected to it.

Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 4 March 2025 to give evidence and present her case. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Tamil and English languages.CLAIMS AND EVIDENCEBefore the Department The applicant claims to be a [Age]-year-old Sri Lankan citizen who was born in [Town], Sri Lanka. In a statement accompanying his protection visa application, the applicant claimed to fear harm in Sri Lanka on the basis of his familial links to the Liberation Tigers of Tamil Eelam (LTTE) and his (actual and imputed) political opinion. The applicant claimed that his family were well known locally as LTTE sympathisers as two of his brothers, [Mr A] and [Mr B], had served in the LTTE. The applicant had not had any direct involvement with the LTTE as he was a child when the war ended, but as an adult had actively participated in Tamil commemorative events and had worked as [an occupation 1] for [Employer 1], a Tamil-language [service] operating in Sri Lanka.[2] [2] [URL] At the beginning of 2023, the applicant and his colleague [Mr C] were [doing a job task] in [Town] when they were approached by men who identified themselves as from the Criminal Investigation Department (CID). The men took the applicant and [Mr C]’s national identity cards and left, telling them that the cards would be returned by post. [Mr C] was killed several weeks later, and his body found on the road. [Mr C]’s family lodged an inquiry with the courts because they believed that the Sri Lankan authorities were responsible for his death. In June 2023, the CID detained the applicant and took him to their office. The applicant was held for 3 days, beaten and interrogated about the work he did for [Employer 1]. During the interrogation the CID officers showed the applicant his and [Mr C]’s identity cards, told him that they were responsible for [Mr C]’s death, and warned him that he would face the same fate if he did not cease his [occupation 1] work. The CID officers also accused the applicant of being from a LTTE family, informing him that they knew his 3 brothers had fled Sri Lanka and that 2 were LTTE members. The applicant was only released after his father-in-law paid a senior CID officer a bribe (the June 2023 incident). In July 2023 the applicant fled Sri Lanka for [Country 1] with the assistance of an agent. He returned to Sri Lanka in September 2023 before departing for Australia in October 2023 using a false Sri Lankan passport. The applicant claimed that if he were to return to Sri Lanka he would be targeted by the Sri Lankan authorities because of his familial ties with the LTTE and his work in the media.Interview with the Department The first applicant attended an interview with the delegate on 21 November 2023. Delegate’s decision In their decision record, the delegate did not accept that there was a real chance or risk that the applicant would be harmed because of his familial ties with the LTTE and/or his work in the media.

Decision

Reasons for decision

Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.DECISION The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.Date of hearing: 4 March 2025Representative: Ms Nina Merlino, Carina Ford LawyersATTACHMENT - 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.…

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.Identity The applicant has provided a translated copy of his Sri Lankan birth certificate, and copies of the biodata pages of the Sri Lankan passport issued in his name.[5] There is no information before the Tribunal suggesting that he has a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of Sri Lanka, and that Sri Lanka is the receiving country and country of reference for the purposes of this review.[5] The Tribunal does not have a copy of the applicant’s bogus passport before it.The applicant’s personal background The applicant gave evidence that he was born in [Village], [Town]. He is one of [Number] siblings. [Some] of his sisters are deceased and [one] lives in [Village]. The applicant’s eldest brother, [Mr F], has been estranged from the family since the end of the civil war. The second brother, [Mr A], was granted a protection visa in Australia in 2017 and is now an Australian permanent resident. The applicant’s third brother, [Mr B], has sought asylum in [Country 2], and his fourth brother, [Mr G], has sought asylum in [Country 3]. The applicant and his family lived in [Town] until they were displaced at the end stages of the Sri Lankan civil war. The applicant, his parents, sister and [Mr G] were all detained in camps for about a year after the end of the war. They were permitted to return to [Village] in about 2010. [Mr B] was released from a military camp in 2013. After completing his O-levels in [Year] the applicant went to work in a shop with [Mr B]. He opened his own shop in 2018, selling [supplies] to other merchants. After closing his shop in 2020 the applicant retained 2 vehicles which he would rent. The rent from 1 vehicle was used for his living expenses, and the rent from the second vehicle was saved. The applicant is married. He and his wife married in 2019, and they have a [child] together. The applicant’s wife and child life with his wife’s parents in [Location], [Village]. The Tribunal accepts the above matters to be true.The applicant’s claims for protection As was noted above, the delegate did not accept the applicant’s claims about his work for [Employer 1], the death of [Mr C] or the June 2023 incident. The delegate also did not accept that the applicant was of ongoing interest to the Sri Lankan authorities because of his media work and/or political opinion. The delegate placed significant weight on the applicant’s decision to participate in [an event] while in hiding, which in their view suggested that the applicant knew he was of no particular interest to the Sri Lankan authorities. The Tribunal has the benefit of substantial additional evidence addressing the delegate’s concerns. In respect of the applicant’s work for [Employer 1], the applicant has provided further evidence about the nature of the position, his motivation to work as [an occupation 1], and why he could perform the job without formal [work sector] qualifications. The applicant explained that he was inspired to work in [work sector] to promote awareness of Tamil issues. He did not consider that the current situation for Tamils in Sri Lanka was fair or acceptable, and wanted to bring news of this to the international community. The applicant did not require the income, as he was earning money through the rental of his vehicles, but rather had an ambition to spread news about the Tamil cause to society. The applicant did not need formal [work sector] training to work for [Employer 1] as the website relied primarily on [materials] uploaded by its contributors. He would [produce the materials], edit them on [an app] then send them to the [website] via [messaging service]. He would be paid if the [website] chose to use the content. The content was not attributed to him specifically and would be taken down if the Sri Lankan government objected to it.