Application for Safe Haven Enterprise Visa Dismissed
In DCG17, a Sri Lankan citizen who arrived in Australia by boat in October 2016 applied for a Safe Haven Enterprise visa (subclass 790), claiming that he was a person suffering from serious harm by Sri Lankan authorities who targeted him for having suspected involvement in the Liberation Tigers of Tamil Eelam (LTTE).
The decision was considered and refused by a delegate of the Minister for Immigration and Border Protection and affirmed by the IAA on 27 June 2017. The IAA accepted that the applicant had in fact been detained, interrogated and subjected to torture on one occasion but did not accept that in the future the appellant would be of interest of the Sri Lankan authorities.
The Decision of the IAA
In considering the applicant’s claim, reference was made to the United Nations High Commissioner on Refugees (UNHCR) 2016 UK Home Office opinion that: “Simply being a Tamil does not of itself give rise to a well-founded fear of persecution or serious harm in Sri Lanka”. It was not accepted that the applicant faced any real risk of harm arising from his political opinion or that he would be of any ongoing interest to the Sri Lankan authorities, nor would he be charged with departing illegally upon his return. Hence the requirements for a protection visa were not satisfied. pursuant to s 36 (2)(a) or 36(2)(AA) Migration Act 1958 (Cth).
Key Legislation
Section 36(2)(a) and 36(2)(aa) Migration Act 1958 (Cth) considered by the IAA sets out the criteria for protection visas as follows:
(2) A criterion for 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;
Key Takeaways
In meeting the requirements for a Safe Haven Enterprise visa, applicants should note the following:
· Individuals originating from a particular race or area not recognized by the UNHCR as requiring protection solely on that basis will need to prove additional, relevant factors which may arise to a profile of risk
· The applicant must face a real chance of serious harm upon return to their originating country
· The risk of harm must be of an ongoing nature
Contact Us
If you would like us to assist you in your Safe Haven Enterprise Visa application, please call one of our highly trained immigration lawyers at Agape Henry Crux. They can be contacted on 02-27007200 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.
Reference: DCG17 v Minister for Home Affairs [2019] FCA 299