1503508 (Refugee)

[2017] AATA 1679

1503508 (Refugee) [2017] AATA 1679 (8 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503508

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Amanda Paxton

DATE:8 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 September 2017 at 9:50am

CATCHWORDS

Refugee – Protection Visa – Sri Lanka – Social Group – Sri Lankan Athletes – Persecution – Credibility Issues

LEGISLATION

Migration Act 1958, ss 5(1), 36(2)(a)(aa)(b)(c), 65, 91R, 91s, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 23 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the following witnesses by telephone to Sri Lanka:

   ·     [Mr A], colleague, [role];

   ·     [Mr B], colleague, [role], Colombo; and

   ·     [Mr C], [role], [organisation name], Sri Lanka.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing. A copy of the delegate’s decision refusing the applicant’s current application for protection was provided to the Tribunal by the applicant. 

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

20. The Tribunal notes that DFAT released a Country Information Report on Sri Lanka in December 2015.[1] This DFAT Report has been updated, the most recent being published in January 2017.[2] In line with its obligations under Direction No. 56, the Tribunal has had regard to the most recent report and carefully considered the issues raised in this report. The Tribunal is satisfied that the current report does not differ materially or substantially to the December 2015 report and does not raise any new issues for this assessment. The Tribunal has therefore relied on the earlier report.

    [1] DFAT Country Information Report, Sri Lanka, 18 December 2015

    [2] DFAT Country Report Sri Lanka, 24 January 2017

    Credibility

21. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

22. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

23. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

24. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

25. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The applicant’s claims for protection made in her Statutory Declaration [in] January 2015 can be summarised as follows:[3]

    [3] DIBP, [file], ff. 90 - 92

    ·     The applicant claims she was an [Occupation 1], has had an interest in athletics [and] over many years in [Employer 1] successfully participated in competitions. As a result of her performance in events she was regularly selected by the [committee] for international events, in particular [Event 1].

    ·     The applicant claims that selection for these events was highly sought-after, and the Committee was subject to internal divisions and pressure and attempts to influence selection. In 2012, the applicant was selected on merit for the [Country 4 Event 1] by the committee with the support of the Chairman, but another committee member, [Mr D], supporting other parties, tried to prevent the travel of people who had been selected.  Those affected complained to the office of the previous [President], and the matter was resolved in the favour of the applicant and her colleagues.

    ·     The applicant claims that the same problem occurred in 2013 when she applied to attend [Event 1 in] Australia.  She was again recommended for the team by the Chairman of [the committee] on the basis of her performance, but [Mr D] did not support her participation because he wanted other members to participate who were not athletes but wanted to migrate to Australia.

    ·     The applicant claims she was told these people have influence through higher rank [colleagues] and politicians also. She claims she was threatened by the higher rank [colleagues] and politicians to withdraw her journey, as they had their own members to take part in these games, but she did not withdraw, obtained a visa, and came to Australia.

    ·     The applicant claims that she was constantly threatened, verbally and physically abused by them, receiving death threats and telling her not to return to Sri Lanka.  She claims the death threats were made by top government bodies and underworld figures in Sri Lanka due to the above reason. She claims she was ill-treated by her higher rank [colleagues] due to the influence of the above mentioned people.

    ·     The applicant claims that after she arrived in Australia, her sister and brother told her that unknown people had trespassed to her home, asked for her and threatened her family.

    ·     The applicant claims that her sister made a police complaint regarding this incident at Police stations, and that the Police stations had started investigations into this complaint.

    ·     The applicant claims that if she returns to Sri Lanka these people will take revenge on her and will not let her be free.

    ·     The applicant claims her family are still threatened by the unknown people asking for her and they are still chasing her. She claims she can never escape from them.

    ·     The applicant claims that she cannot seek protection of the government authorities because the people who threaten her have stronger connections with Sri Lankan Government authorities than poor people like her.

    ·     The applicant’s representative has submitted that the applicant has a real chance of serious harm on the ground of political opinion arising from her dealings with powerful interests of status or power, and membership of a particular social group, “Sri Lankan athletes selected for participation in the [Australian Event 1]”. It was submitted that no effective protection measures are available to the applicant and internet articles concerning police brutality in Sri Lanka were provided in support of this claim. [4] [5]

    [4] AAT, f. 54

    [5] AAT, ff. 51 - 53

27. The applicant’s representative further submitted that in the alternative there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk she will suffer significant harm.

28. The applicant made a further Statutory Declaration [dated]  March 2015, concerning details of her travel and reasons why she missed her events for [Event 1] in October 2013.[6]

    [6] AAT, 1503508, f. 22

    Country of reference

29. The applicant claims to be a citizen of Sri Lanka and provided consistent biographical information and a copy of her Sri Lankan passport.[7] On this evidence, the Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is her receiving country for the purposes of complementary protection.

    [7] DIBP, [file], ff. 30 - 38

    Third country protection

30. There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Findings and Reasons

31. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

32. The Tribunal had before it material including:

    ·     Emailed message from [Mr A], dated [date] July 2016;[8]

    ·     Email message from [Mr B] dated [date] August 2016;[9]

    ·     Letter from [Mr C], undated, concerning the applicant’s attendance at [Event 1] held in [Australia] [in] October 2013; [10]  

    ·     Letter from [an official of] [the] Australian [Event 1], dated [August] 2013, confirming that various individuals, including the applicant, were registered to compete in the [Australian] [Event 1] in [City 1] on October [dates] Australian [Event 1];[11]

    ·     Extract from the Information Book of [Suburb 1] Police Station, dated [October] 2013, made by [the] applicant’s sister [Ms A] and translation;[12]

    ·     Extract from the Information Book of [Suburb 2] Police Station, made by [a person] claiming to be the applicant’s brother and translation;[13]

    ·     Complaint to Sri Lanka Police, Maharagama, of [September] 2015 made by [Ms B], the applicant’s sister, and translation;[14]

    ·     Report the Police Station, Maharagama, dated 21 December 2015 [Ms B], the applicant’s sister, and translation.[15]

    [8] AAT, f. 50

    [9] AAT, f. 49

    [10] AAT, f. 48

    [11] AAT, ff. 45 - 47

    [12] DIBP, [file], ff. 70 - 71

    [13] DIBP, CLF [file], ff. 63 - 64

    [14] AAT, ff. 43 - 44

    [15] AAT, ff. 41 - 42

33. The Tribunal accepts the applicant’s evidence, consistent with the documentary evidence on the file, that she was born in [year] (is [age] years old), and is divorced. On the same basis, the Tribunal accepts the applicant has [number] sisters in Sri Lanka, all in the Colombo area. The Tribunal accepts the applicant commenced living with her sister in Maharagama after her divorce in 2011.

34. The Tribunal accepts the applicant’s oralevidence, consistent with the documentary evidence on the file, that she was employed [with Employer 1] from 1997, and had various roles including in [a certain section] and, prior to coming to Australia, as [Occupation 1], where she reported to the Director and it was her role to provide [services] to VIP personnel. The Tribunal accepts the applicant’s evidence that her service with [Employer 1] was discontinued when she did not return to Sri Lanka from Australia, and that she currently receives financial assistance from the Australian government; that she is entitled to a pension from her pension fund in Sri Lanka but she needs to be in Sri Lanka to receive it.

1. On the basis of the applicant’s detailed and knowledgeable oral evidence and documentary evidence including certificates and awards for sporting achievement, the Tribunal accepts the applicant was associated with sporting activities [with Employer 1] over a period of [number] years. On the same basis, the Tribunal accepts the applicant was attached to the [Employer 1] Sports Division and pursued her interest in [athletics]; that she trained members of [Employer 1] in these events, and that as [Employer 1] allocated time to all members to undertake physical training as a compulsory activity, she maintained a high level of fitness and expertise.

2. The Tribunal accepts the applicant’s oral evidence, supported by photographic and documentary evidence, that as well as being fit and able to attend [Event 1] over a number of years, she built up a record of achievement, obtaining gold or silver medal standard, which enabled her to meet the pre-requisites for participating. The applicant explained that [Event 1] are held every year, and [Employer 1] put forward a team to represent Sri Lanka. She stated that her participation each year depended on whether she was able to get funding and to be selected. [Employer 1] helped with costs associated with certain events, and some government Ministers also helped the applicant by contributing financially.  The Tribunal accepts the applicant participated in [Event 1] in the [events] representing Sri Lanka in the [Employer 1] team in Games including in [Country 1] in 2006, [Country 2] and [Country 3], and [Country 4] in 2012.

3. On the detailed evidence of the applicant, the Tribunal accepts that there is body affiliated with [Event 1] responsible for selection, and the Chairperson is in charge of selection. The Tribunal accepts that before international [Event 1] there were at least two or three events in Sri Lanka and athletes who performed well in those meets were given preference to participate internationally. The applicant stated there can be irregularities in selection where not the best athletes are selected. She cited the example of the [Country 4 Event 1] in 2012 where one of the officials, [Mr D], [an official] of [Association 1], tried to block the travel of a whole team that had been selected on merit, and included the applicant, by calling the travel agency and telling them not to issue them with tickets. On the detailed evidence of the applicant, the Tribunal accepts that in this case, the affected people requested the former President’s Secretary to call a meeting to obtain an explanation why their tickets for travel were being denied and finally got approval and tickets. On the consistent and detailed evidence of the applicant, the Tribunal accepts that irregularities can occur in selection, and that selection and travel for the Games was sought-after.

   Petition against the applicant and her colleague to the Australian Visa Office

4. In considering the applicant’s claim that she has a real chance of serious harm or a real risk of significant harm from people who wanted to take the applicant’s place in the team for the [Event 1] in Australia in 2013, the Tribunal has considered the applicant’s oral evidence to the Tribunal at hearing.

5. The applicant told the Tribunal that she was selected for the 2013 Games and applied for a visa at the Australian High Commission but she was refused a visa. She claimed she was not granted a visa because there was a petition against her and her colleagues to the Australian Visa Office by people who wanted to prevent them from going, so that they could go instead. She stated she presumed this was the case and that there was outside influence from someone because there were 54 visa applications put forward which were issued in batches and that in the initial batch only 8 visas were granted.

6. On further enquiry, the applicant told the Tribunal she received a letter from the Visa Office advising her of the refusal of her visa application because there were certain conditions that she had not met. The applicant stated that when she made a second application for a visa, she addressed the points mentioned in the refusal letter, in particular she attached evidence of her certificates, qualifications and sporting achievement, and evidence of her funds which included a report about her land, and a vehicle in her name. She was granted the visa after provision of this information.

7. The Tribunal considers the evidence of the applicant indicates she was not granted a visa when she first applied because she had not met visa criteria and that when she provided evidence of funds and athletic qualifications, her visa was granted. On the evidence before it the Tribunal considers there is no basis for the applicant’s claim there was a petition against her at the Visa Office by hostile people who wanted to prevent her travel. The Tribunal formed the view that the applicant was seeking to embellish her claims to protection and this raised concerns for the Tribunal as to the general credibility of the applicant. The Tribunal does not accept the applicant’s claim that a petition was made by people who opposed the travel of the applicant and members of her team to the Australian Visa Office.

8. On the Tribunal’s further enquiry about her situation prior to departing Sri Lanka, the applicant’s evidence was inconsistent. The applicant changed her oral evidence and stated that she was not successful in her visa application because she and her colleagues’ names were not placed on the [Employer 1] list of [Event 1] participants because people with influence over the team opposed her taking part in the Games so that others could attend instead. However, when the Tribunal enquired further, the applicant stated on a number of occasions that [an Employer 1] list of members selected for the team to attend the Games was not presented to the Visa Office. She told the Tribunal that prospective participants in the Games made private applications and whoever had money had the chance to apply and that her visa refusal was not because her name was not put forward on a [list]. The applicant stated she made the claim about being omitted from a list because she had seen this sort of thing happen in the past when there were Meets in other countries.

9. The Tribunal considered the applicant’s evidence in respect of this claim was shifting and inconsistent and did not support the applicant’s claim that people tried to prevent her travel. This raised serious concerns for the Tribunal about credibility of the applicant’s claim that people with influence tried to prevent participation in the team. On the basis of the applicant’s oral evidence, the Tribunal does not accept the applicant’s claim at hearing, that she was not successful in her visa application because her name was not on the [list] because people with influence over the team opposed her taking part in the Games.

   Petition against the applicant and her colleague

10. The Tribunal has considered the applicant’s claim at hearing that when she spoke to her Director after her visa was refused, he informed her that there was a petition against the applicant and her colleague’s inclusion in the [Employer 1] team. The applicant stated that her Director did not have anything to do with [Association 1] and she could not explain how he knew there was a petition against her or the basis for this comment except he suggested there might be because she had a similar problem before going to [Country 4]. The applicant said her Director had just advised her to reapply for a visa at the Visa Office because she was a good sportswoman. The Tribunal has considered the evidence before it, and concludes there is no basis for the applicant’s claim that people who wanted to prevent the applicant’s participation in the team took action of any kind to have her excluded from the team in some way. The Tribunal does not accept that the applicant’s participation was not supported from anyone in [Employer 1] or the [Event 1] organisation.

    Threats to the applicant before she came to Australia

11. The Tribunal has considered the applicant’s claim that she was threatened by higher ranked [colleagues] and politicians to withdraw from the Games, so their members could take part. She claimed that she was ill-treated by her high rank [colleagues] due to the influence of the higher ranked [colleagues] and politicians.

12. At hearing, the applicant told the Tribunal that there were two people, who were not athletes, who applied for visas to come to the Games in Australia but were not successful. She stated these people assumed that she and her colleague were blocking their chances of going to the Games and questioned her about her visa on two occasions. She stated that they first approached her when her visa was refused and again when she was granted her visa. She claimed that these people independently asked her colleague about his application. The applicant and her colleague told them that they got the visas because they were athletes. The applicant told the Tribunal that she did not complain to anyone about these approaches because she “didn’t really take them into account because these were not threats.” On the basis of the evidence of the applicant, the Tribunal formed the view that the applicant considered these approaches non-threatening. For this reason, the Tribunal does not accept the applicant’s claim that in Sri Lanka she was threatened by higher ranked [colleagues] and politicians to withdraw from the Games, or that she verbally or physically abused.

13. The Tribunal also considered the applicant’s statement in her Statutory Declaration of [January] 2015 that she was ill-treated by her high rank [colleagues] due to the influence of the higher ranked [colleagues] and politicians. At hearing, the applicant gave evidence that she received support from her Director and the Chairman of [the committee]. While the Tribunal has accepted above that participation in the Games was attractive to many, the evidence before it indicates that the applicant received strong support, such that when there was dispute over attendance in 2012, she was successful over others in travelling as part of the team, as she had been for many years. On the evidence before it, the Tribunal does not accept the applicant was ill-treated by higher ranking [colleagues] who were influenced by higher ranking [colleagues] and politicians.

    The applicant’s general credibility

14. The applicant told the Tribunal that she applied to participate in two events in the Australian [Event 1], [and] there was a fee of $30 for each event. She decided not to participate in [Sport 1] because of the cost, but that they were ‘open events’ and she could apply for [Sport 1] once in Australia. The applicant told the Tribunal that she provided details about herself to the [Mr C], who organised and co-ordinated applications for participation, paid for the events on-line, and made all the travel arrangements for the Games which usually ran for about ten days.

15. The applicant indicated that prior to departure, she obtained information about the Games from the internet and that the [official] gave her details. The applicant gave evidence that the internet site provided information about the venue in [City 1] and the date of the Games. She was aware that the Games were to run from [date] October 2013 to [date] October 2013.

16. The applicant stated that the majority of the team arrived in Australia for the Games on [date] October 2013 but as she and her colleague, also from the [same] Division, experienced delays in obtaining visa about the Games (the applicant’s visa was issued [in] September 2013) they had to make their own arrangements.

17. In considering the general credibility of the applicant, the Tribunal referred to the applicant’s Statutory Declaration detailing her travel arrangements and circumstances on arrival in Australia, and to details of her travel itinerary the applicant provided with her application and discussed in the delegate’s decision record provided to the Tribunal by the applicant. The Tribunal discussed with the applicant discrepancies in this evidence noting that her ticketing indicated she was to arrive very late [into] [City 2] on [date] October 2013 and at [City 3] at [time] hours on the following afternoon, [date] October 2013. The Tribunal noted that Entry stamps on the applicant’s passport confirmed this is what occurred. The applicant stated that the flight from [City 2] was delayed and she and her colleague stayed overnight at the airport in [City 3] and went to [City 1] to the Games next day, i.e. [date] October 2013. As discussed further below, the applicant did not arrive in time to participate in any events.

18. The Tribunal observed at hearing that this information did not accord with that provided by the applicant in her Statutory Declaration, in which she stated she left Sri Lanka on [date] October 2013 at [time], and arrived in [City 3] that night and presented for the Games in [City 1] on [date] October 2013. The applicant could not explain the discrepancy between her ticketing and her statement but said there was no change in ticketing arrangements but there was a delay in [City 2]. She stated that she only realised that there was a time difference after she arrived and that she may have made a mistake about her travel in her Statutory Declaration.

19. The Tribunal acknowledges that given these events occurred some time ago, it may be difficult to recall details. However, the Tribunal considers that had the applicant wished to provide an accurate account of her arrival details in something as important as a Statutory Declaration, she could have checked her recollection against her own documentary evidence. The applicant’s failure to do this leads the Tribunal to have serious doubt about the applicant’s general credibility.

20. The Tribunal considers the applicant’s evidence in this matter to be important because the delegate was not satisfied the applicant travelled to Australia for the purpose of attending the Australian [Event 1] as claimed, and the applicant provided this Statutory Declaration to the Tribunal to support her claim that participation in the Games was her purpose for travel. For this reason, the Tribunal considers the discrepancies in the applicant’s evidence are relevant to a consideration of her claims.

21. On the consistent evidence of the applicant, the Tribunal accepts she did not arrive in time to participate in any events. The Tribunal put to the applicant that she would have been aware she would not arrive in time to participate in her events; that in her Statutory Declaration she indicated her [official] had informed her that her events were to be held on [dates]; and that she had access to information on the internet about Games’ details. In response the applicant stated that she knew the Games were to be held from [date] – [date] but she did not know the timetable. [Mr C], in his evidence to the Tribunal, stated that the timetable was available on-line but participants were usually given an event timetable on arrival when they registered because there could be amendments to the timetable. The Tribunal noted that the applicant had been to many of [the events] before and questioned whether it had not occurred to her to obtain and check the timetable on-line before she departed Sri Lanka especially given her departure was delayed. The Tribunal suggested it would not have been difficult for the applicant to obtain a timetable and the applicant agreed that it was her own responsibility to ensure she was present for events and that she did not know whether or not there were events she could participate in on [date] October 2013, the date she arrived, nor did she enquire. As confirmed by the testimonial provided to the Tribunal by her colleague [Mr A], the Tribunal notes the applicant was in a responsible role [with Employer 1], and would expect her to take steps to ensure she knew the timetable. The Tribunal considered the applicant’s explanation for travelling after her events took place unconvincing.  

22. The applicant stated that she did not contact the [official] on arrival in [City 3] because she did not have his number; that she had booked accommodation in [City 1] but could not find the place she had booked. The applicant said she met the [official] at the venue sometime after 9.00 am and he told her that “her events were already over and why did she come late.”

23. In considering the credibility of the applicant’s claim to the Tribunal that she intended to participate in the Games, the Tribunal takes into account that [Mr C] wrote a statement at the request of the applicant, but that the contents did not accord in a significant respect with the applicant’s account of what occurred, but added another reason why the applicant did not participate, i.e. that he had misinformed her. In this letter, [Mr C] states that when the applicant asked him for the events timetable, “I was very busy at the time and I accidentally told her that it is possible that her events were over. I take full responsibility for misinforming her that her events were over and I did not provide her with the events time timetable.” The Tribunal considers that the discrepancy in the accounts does not support a finding that the applicant is a credible witness.

24. At hearing, the Tribunal took testimony by telephone from the applicant’s witness, [Mr C]. He gave evidence that he had a professional relationship with the applicant related to her sporting activities, and confirmed that he was [the official] for the Australian [Event 1], and that the applicant was a participant in the Games for [Sport 2] events. [Mr C] confirmed that when the applicant came from Sri Lanka she was not able to participate in this event, and stated that she could not find the location because of her lack of language skills. He also gave evidence that she could not participate in any other event because she could not comply with rules for registration, which required registration 45 minutes before an event, because she was too late. He stated that when she spoke with him on her arrival, he did not have time to inform her about the timetable and she did not have a timetable. He stated that normally he expected people to have a program, but as she didn’t “it was his fault too.”  The Tribunal acknowledges that the [official] could, himself, have provided the applicant with a timetable of events at an earlier time, but notes that he expected participants to take responsibility for having a timetable and being present for events. On the evidence before it, the Tribunal does not accept the applicant missed her events because the [official] was negligent and did not give her a timetable or that he misinformed her on the day about her events.  

25. The applicant stated earlier at hearing that she thought she might have the option of registering for another event such as [Sport 1] if she did not make it for [Sport 3] or [Sport 2] on the day of her [arrival]. The Tribunal enquired about this option and the applicant said she did not get a timetable at all and she did not find out if another event such as the [Sport 1] event was open to her. The Tribunal considers that had the applicant the intention of participating in the Games, she would have enquired whether this option was open to her.

26. The Tribunal has considered the evidence before it and notes that the applicant is a mature person who held responsible employment and has travelled a number of times for [Event 1] and that she was aware of all the procedures. The Tribunal draws the conclusion that she is a competent, experienced person, capable of checking program details and of ensuring her travel arrangements enabled her to attend the events she had booked for. The Tribunal considers the applicant’s Statutory Declaration concerning her intention to participate in the Games is misleading and that overall the applicant’s explanation for her failure to make arrangements enabling her to participate in the Games lacks credibility. On all the evidence before it, the Tribunal does not accept that the applicant did not know that her events were going to be over by the time she arrived. On the evidence before it, the Tribunal is not satisfied the applicant came to Australia with the purpose of participating in the Australian [Event 1].  The Tribunal does not consider the applicant is a witness of truth in this matter. This raises serious concerns for the Tribunal as to the applicant’s general credibility.

    Threats to the applicant after arrival in Australia: complaints of [date] October 2013 and [date] October 2013

1. In considering the applicant’s claim that she was threatened and abused by top government bodies and underworld figures in Sri Lanka, received death threats and was told not to return to Sri Lanka because she had deprived members of the opportunity to travel, the Tribunal has taken into account the applicant’s evidence that before her planned return to Sri Lanka, her sister told her that two people had come to the house, abused her and said that when the applicant returns they will kill her.

2. The applicant stated that when her sister told her about this incident, the applicant phoned one of her superiors, [Mr B], who advised her sister to make a report to her local police. On the evidence to the Tribunal of the applicant’s witness, [Mr B], who confirmed that he is [occupation], the Tribunal accepts [Mr B] and the applicant were colleagues [with Employer 1] for ten years and that he provided his written statement at the applicant’s request. In the absence of any evidence to the contrary, the Tribunal accepts [Mr B’s] evidence that about a week after the applicant left Sri Lanka, her sister came to his office saying that people who had wanted to go on the tour but were not allowed to go to Australia, were angry, asking about the applicant and threatening the applicant. The Tribunal accepts [Mr B’s] oral evidence that he advised the applicant’s sister to lodge a complaint at her local police station and to talk with her local police station if she received further threats. The Tribunal accepts [Mr B’s] evidence that he did not know who was threatening the applicant or anything about the case or the current situation. The Tribunal accepts [Mr B] had a conversation with the applicant’s sister but the Tribunal does not accept this is evidence that the applicant was threatened by anyone, noting that [Mr B] stated that he knew nothing about the events and that he was not a witness to the claimed incident.

3. On the basis of the copy of an Extract from the Information Book of [Suburb 1] Police Station of a report by [Ms A], the Tribunal accepts the applicant’s sister made a report to the police. The Tribunal observed that [Mr B] stated he advised the applicant’s sister to go to her local Police Station, i.e. Maharagama Police Station if she wanted to make a report and asked the applicant why, given this advice, the applicant’s sister had made a report at [Suburb 1] Police Station, about ten kilometres from her home in Maharagama. The applicant stated that her sister went there because her sister knew someone there. The Tribunal, notes the police report indicates the applicant’s sister was also connected to [the same] Division and considers that if the applicant’s sister had concern about threats and wanted action to be taken to identify the source of those threats and prevent them from occurring, she would have taken the clear advice of [Mr B] and made a report to her local police station. This raises serious concerns for the Tribunal about the credibility of the alleged threats.

4. In considering the credibility of the first alleged threat, the Tribunal has also considered the applicant’s claim that a few days before [date] October 2013, unknown people went to her “brother’s” home in [Suburb 2] and asked about the applicant and threatened her, and he lodged a report at the [Suburb 2] Police Station which is documented in the Extract from the Information Book. At hearing, the Tribunal noted that the applicant does not have any brothers and asked the identity of the person making this report, and the applicant stated that this is not a brother, but her cousin. The Tribunal finds it difficult to believe that a person giving a statement to the police would provide wrong information about this relationship to the applicant, and formed the view that the person providing this report was seeking to strengthen his credentials as a close relative of the applicant. The Tribunal commented that [Suburb 2] is a considerable [distance] from the applicant’s residence in Maharagama and asked why people would threaten the applicant there. She responded that she sometimes stayed there when she was a police officer, and that these people would have all their addresses. The Tribunal found this explanation difficult to believe, given when the applicant was provided with opportunity to tell the Tribunal about her residence and living arrangements, she did not mention this. The Tribunal formed the view that this report was contrived by the applicant’s cousin.

5. The Tribunal has examined the translation of the extract of the report made by the applicant’s sister at the [Suburb 1] Police station, and notes that, in translation, this report reads that:

   After that persons whom I do not know came to my residence and asked about my sister and also asked about her return. They shouted saying, cutting off our names only 6 went and we are looking forward till she come and she will be killed by throwing Acid to her and went. They have come for several times and threatened like this and also inquired about my sister form our neighbours. They also make death threatens to me over the phone. As these calls are from Telephone boxes we can't find the numbers. No number plates of the vehicles in which they came. They carried some bottles in which liquids to be seen.

6. The applicant’s cousin’s report in the Extract from the Information Book of [Suburb 2] Police Station made a couple of weeks later, reads in translation that:

   Few days ago a gang whom I do not know came to my residence and asked about my sister. They shouted saying, cutting off our names only she went and we are looking forward till she come and she will be killed by throwing Acid to her, hit at my gate and went. Now always few unknown persons come from numberplate less motor cycles through our way to home and give threatens. Threaten over the phone also. As these calls are from Telephone boxes we can't find the numbers… Neighbours told me that this gang has been carrying things like parcels.

7. The Tribunal considers the high level of similarity of these reports, including identical language, expressions and content, for two allegedly different incidents raises significant concerns about the credibility of these reports to the police. The Tribunal considers that such a close similarity in the reports strongly suggests the reports have been scripted and that they have not been provided to the police as a spontaneous record of two separate events. In reaching this view, the Tribunal has taken into account independent advice from DFAT, put to the applicant, that document fraud is prevalent in Sri Lanka and attempts to use fraudulent documents are common.[16] In this case, the Tribunal considers the evidence indicates the applicant’s relatives have made false reports to the police.

   [16] DFAT Country Information Report, Sri Lanka, 18 December 2015 and confirmed in the updated  DFAT Country Report Sri Lanka, 24 January 2017.

8. The Tribunal also asked the applicant about the content of these reports, and found her responses were vague and limited. At hearing, the applicant said the people allegedly making the threats were the people who could not attend the events because “these are the only people [she] can think of” and they asked her questions before she came to Australia.  Noting that the applicant’s cousin her cousin had stated in his report to police that, “When inspected further more I got to know that this gang is from the underworld”, the Tribunal asked the applicant what she thought he meant. In response, the applicant could not explain this reference and stated she did not know about this; that she did not know if her cousin had identified the people but “feels that they are politically connected figures” and “people who were not athletes but wanted to come to Australia for the Games”. The Tribunal found the applicant’s explanation about the source of the threats and the underworld or political connections of people allegedly threatening her to be vague and limited, raising serious doubts about the credibility of her evidence. 

9. The Tribunal asked for more information about the threats made to her sister and cousin in 2013, the applicant stated “they requested my whereabouts”. The Tribunal made numerous enquiries about the incident but the applicant volunteered very little information. She stated that “Two to three people came,” “they banged on the windows and one of them abused her sister.” The Tribunal acknowledges that this incident occurred some years ago, that memory can be faulty and that the applicant may not be able to recall details of this incident. The Tribunal also acknowledges the applicant was not present at this incident and relies on her sister and cousin’s account and that articulated in the police reports. However considering the significance of this incident to her circumstances, the Tribunal considers she would have discussed these threats in detail with her sister and cousin and would be able to provide a more detailed account of what occurred, for example that they threatened, on both occasions, to kill her by throwing acid on her and that they carried bottles in which liquid could be seen/parcels. The applicant’s vague and limited responses to the Tribunal’s enquiries led the Tribunal to the view that the applicant’s was not a witness of truth.

10. Taking into account all the considerations above, the Tribunal formed the view that the claimed threats set out in the police reports of [date] October 2013 or [date] October 2013 provided to the Department did not reflect incidents that had actually occurred. The Tribunal was not satisfied as to the applicant’s general credibility. On this basis, the Tribunal does not accept the applicant’s sister and cousin were the subject of abuse or threats of any kind, including death threats directed towards the applicant by unknown persons or a gang, from the underworld or politically connected figures or anyone else. 

    Threats to the applicant after arrival in Australia: complaints to police [date] September 2015 and [date] December 2015

11. The Tribunal has considered the applicant’s claim that in 2015 her sister received threats on three occasions and made two further reports to police, both at Maharagama Police Station. The applicant told the Tribunal that her sister informed her that a few days after the [family event] of her [sister], people came to the house looking for the applicant because they thought the applicant would have returned for the [family event], and that the applicant’s sister made a complaint to police (the complaint of [date] September 2015) following this incident. The applicant stated that her sister made a further report (the report of [date] December 2015) reporting that the same people went to her house around the time of [the family event] (on [date] November 2015 and [date] December 2015). The applicant claimed that police started investigations but they have not come up with anything conclusive. The applicant claimed that following the report, the police asked them to call an emergency telephone number and inform them if there are any further threats.

12. The Tribunal made enquiry about the incidents referenced in these reports, and considered the applicant’s responses were vague and limited. The Tribunal asked who came to her sister’s house after the [family event]. While the applicant’s sister reported to the police that the two people who came to the house identified themselves as [Mr E] and [Mr F], and stated the applicant had robbed them, the applicant could provide to the Tribunal no details about these people “because there were lots of people at the [family event].” The Tribunal provided the applicant with a number of opportunities but the applicant did not volunteer the names of [Mr E] and [Mr F]. As above, the Tribunal acknowledges that this claimed incident occurred some years ago and that the applicant may not be able to recall details. The Tribunal also acknowledges the applicant was not present at this incident and relies on her sister’s account and that articulated in the police reports. However considering the significance of these incidents to her circumstances, the Tribunal considers she would have discussed these incidents extensively with her sister and would be able to provide a more detailed account of what occurred, for example the names of the two people involved, especially noting it was claimed that the same two people went to the house three times, and that it is claimed these people were the ones affected by the applicant’s inclusion in the Games team. The vague and limited responses of the applicant to the Tribunal’s enquiries led the Tribunal to the view that the applicant was not a witness of truth in this matter.

13. The Tribunal made enquiry about the nature of the claimed threats referenced in these reports, and considered the applicant’s responses were vague and limited. The Tribunal asked the applicant what the people making the threats wanted, and she stated she cannot comment about that. The Tribunal reminded the applicant that in each of the alleged threats in 2015, the perpetrators refer to money, that the applicant “had robbed our money and run away to another country… I will kill her if she fails to return my money taken from me”. The Tribunal asked the applicant if this was the first time the people had asked for money and she stated that they had asked for money before but she could not expand on this, for example she could not say whether they had given any indication how much money they wanted, that they “haven’t specified a figure.”  After discussion, the applicant stated that when the people said the applicant “robbed their money”, they may have meant that they deposited entry fees and they lost this money when they did not travel. She could offer no explanation why they had not made more clear demand “only that they have specified she should give them money or they will kill her.” The Tribunal considers the applicant’s vague and limited responses about the threats, given their significance to her claims, raises serious concerns about the credibility of the applicant’s claims. The Tribunal is not satisfied as to the general credibility of the applicant.

14. In considering the applicant’s claim to be the subject of death threats and threats for money, the Tribunal took into account testimony from the applicant’s witness, [Mr A]. In his evidence to the Tribunal, [Mr A], confirmed he had known the applicant since 1996 when they worked together for four years; that they have since been acquaintances. [Mr A] told the Tribunal he was aware of the applicant’s interest in athletics and that sometime around 2014 or the beginning 2015, one of her sisters complained to him that people who could not go on the trip to Australia had threatened that “they will look after the applicant when she returns”. He stated that he does not know any other details, but that he gave the applicant’s sister advice that she should make a complaint to her local police station if she received any more threats. He stated that when a complaint is made, the police will investigate immediately if the source can be identified, but if not identifiable, e.g. an anonymous phone call, they would need to get a warrant to trace the call. On the evidence of [Mr A], the Tribunal accepts that the applicant’s sister approached [Mr A] about alleged threats and that he advised her to make a complaint to the local police station. However, the Tribunal has taken into account that, on his own evidence [Mr A] was not a witness to the claimed incidents and did not know any details. Given the Tribunal’s serious concerns about the credibility of the applicant’s evidence, the Tribunal does not consider [Mr A’s] statement is persuasive in assessing whether the applicant was the subject of threats.

15. Taking into account all the considerations above, the Tribunal formed the view that the claimed threats set out in the police reports of [date] September 2015 and [date] December 2015 reflect incidents that had not actually occurred. On this basis, the Tribunal does not accept the applicant’s sister was the subject of abuse or threats of any kind, including death threats and demands for money directed towards the applicant by [Mr E] and [Mr F], or anyone else. 

16. Taking all of the above into account, the Tribunal is not satisfied as to the applicant’s general credibility. On this basis, the Tribunal does not accept the applicant was ill-treated or threatened by people of influence through higher rank [colleagues] and politicians seeking to persuade her to withdraw from the Games, or that any other action was taken to prevent her from travelling to Australia. For the same reason, the Tribunal does not accept the applicant was constantly threatened, verbally and physically abused by them, received death threats and told not to return to Sri Lanka, or that death threats were made by top government bodies and underworld figures in Sri Lanka. On the same basis, the Tribunal does not accept that after the applicant came to Australia people went to her home in 2013 and 2015 and threatened the applicant with death, demanded money and abused her family members because they want retribution against the applicant.

17. For the reasons stated above, the Tribunal does not accept that powerful interests will seek revenge on the applicant on return to Sri Lanka because she defied them in coming to Australia, or that powerful interests have an adverse interest in the applicant because they regard her actions as a political statement of any kind. The Tribunal does not accept the applicant will be singled out by anyone for any adverse treatment as a person who was selected for participation in the Australian [Event 1].

18. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm now or in the foreseeable future arising from her selection and membership of the [Employer 1] Australian [Event 1] team, or any other reason. The Tribunal does not accept the applicant has a real chance of serious harm on the ground of political opinion arising from obstruction of powerful interests of status and power. The Tribunal does not accept the applicant has a real chance of serious harm arising from her membership of a particular social group, “Sri Lankan athletes selected for participation in the [Australian] [Event 1]. The Tribunal finds that the applicant does not have a well-founded fear of persecution.

19. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm from higher ranking [colleagues], politicians, members of [Employer 1] who wanted to travel as part of the [Employer 1] Australian [Event 1] team or anyone else.

    Security in Sri Lanka

20. In the context of the applicant’s claim to need protection from serious or significant harm in Sri Lanka arising from her inclusion in the [Employer 1] Australian [Event 1] team, it was submitted that the civil war in Sri Lanka has had a brutalising impact on people in Sri Lanka, both police and ordinary civilians, and that in the aftermath of the civil war, it is not safe for people to walk on the streets, and people are murdered and maimed by indiscriminate gunfire and violence. The applicant’s representative submitted that while things are slowly returning to “normal’ in Sri Lanka, the concept of law and order is not the same as we would expect in Australia and threats, extortion and violence are common. The Tribunal has considered whether the applicant has a real risk of significant harm arising from the security situation in Sri Lanka.

21. The Tribunal put to the applicant DFAT advice that the security situation in Sri Lanka has greatly improved since the end of the conflict in 2009, and that Sri Lankan security forces – military, intelligence and police – exercise effective control over the entire country.[17] In response, the applicant stated that she is not a special person for the police and they will not give her any special protection. She stated that if an official complaint is made, the police must investigate, but in ‘normal’ circumstances, the protection of police and a person’s safety cannot be guaranteed. In considering the applicant’s claims in respect to security in Sri Lanka, the Tribunal has taken account of DFAT assessment, put to the applicant, that there is no law or Government policy which hinders access to state protection and that any citizen can exercise avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka.[18] The Tribunal also takes into account DFAT advice put to the applicant, that the Sri Lanka Police Service is responsible for maintaining law and order in Sri Lanka and that it has a strength of about 90,000 members.[19]

    [17] DFAT, Country Information Report, 18 December 2015, and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    [18] DFAT, Country Information Report, 18 December 2015, and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

    [19] DFAT, Country Information Report, 18 December 2015, and confirmed in the updated DFAT Country Report Sri Lanka, 24 January 2017.

1. On the evidence before it, the Tribunal considers the possibility the applicant has a real risk of significant harm because of the general security environment in Sri Lanka, is speculative and remote. The Tribunal does not accept that the applicant has a real risk of significant harm from criminal conduct of police or civilians arising from the security situation in Sri Lanka. 

2. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm now or in the foreseeable future for any reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution.

3. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

   State protection

4. The Tribunal has found above that the applicant does not face a real chance of serious harm now or in the foreseeable future or a real risk of significant harm significant harm on return to Sri Lanka. For this reason, the Tribunal has not addressed the applicant’s claims in respect of state protection from harm from people who threaten her.

   CONCLUSION

5. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Amanda Paxton
   Member