1602750 (Refugee)

[2017] AATA 3020

1602750 (Refugee) [2017] AATA 3020 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602750

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:12 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 December 2017 at 10:25am

CATCHWORDS
Protection visa – Sri Lanka – Political opinion – United National Party – Political activist – Police corruption – Physical harm – Effective protection

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are [an age] year old Sri Lankan male (the applicant), his [age] year old wife (the second applicant) and their [age] year old son (the third applicant).  The applicant seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka where he claims to fear harm as a supporter of Sri Lanka’s United National Party (UNP). 

3. The issue in this case is whether any of the applicants meet any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit of such a person. A summary of the relevant law is contained in Attachment A.

4. In assessing the applicant’s claims, I have had regard to policy guidelines prepared by the Department of Immigration and Border Protection (PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration (DFAT’s Country Information Report for Sri Lanka dated 24 January 2017).

5. For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.

   History of proceedings

6. The first and second named applicants entered Australia [in] November 2013 as holders of [temporary] visas.  The third named applicant was born in Australia on [date]. 

7. They applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] February 2016. The applicants appeared before the Tribunal on 21 April 2017 and 28 August 2017 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Sinhala and English languages.

8. The applicants were represented in the review by their registered migration agent. The representative attended the Tribunal hearings.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

9. The first and second named applicants travelled to Australia on apparently genuine Sri Lankan passports, copies of which are contained on the Department of Immigration and Border Protection (DIBP) file. They have always represented themselves to be Sri Lankan citizens in their dealings with DIBP.  The birth certificate of the third named applicant confirms he is their chid.  I find that each of the applicants are Sri Lankan citizens and have assessed their claims against Sri Lanka as their country of nationality.

   Credibility and capacity to give evidence

10. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482

11. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2] 

    [2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70

12. Medical information submitted before the Tribunal hearing indicated the applicant has in the past suffered a traumatic [injury] and [various symptoms] and progressive memory loss.  None of the medical evidence produced to the Tribunal suggested he was not competent to give evidence in the review application.

13. At the departmental interview conducted [in] August 2015 and the Tribunal hearings conducted on 18 April 2017 and 28 August 2017, the applicant was unable to provide details of his activities with the UNP.  However on each of those occasions he was able to respond to questions about his personal and family background in Sri Lanka.  He also responded spontaneously and relevantly to adverse information put to him about statements made by his [Relative A, named] in his own protection visa application.  The Tribunal is satisfied the applicant has the capacity to participate in the review application.

14. In assessing the applicant’s credibility, the Tribunal has had regard to the medical evidence before it.  As discussed with the applicant at hearing, the Tribunal held significant concerns about the credibility of his claims for protection.  However a great deal of further documentary evidence was produced to the Tribunal after the hearing which caused the Tribunal to take a different view of some of the matters that were in issue during the hearing. The Tribunal’s particular findings are discussed below.

    The first named applicant’s protection claims

15. In essence, the first named applicant claims he will be harmed if returned to Sri Lanka because of his political activities with the UNP. The second named applicant did not initially make her own claims for protection, but sought to be joined to her husband’s application as a member of his family unit.  Later in the proceedings the second named applicant articulated some claims of her own which are discussed later in these reasons.

16. The first named applicant claims in his protection visa application that his family are long-time supporters of the UNP. He claims his biological father disappeared in 1985 while on a trip in a Tamil area and is presumed killed by the Liberation Tigers of Tamil Eelam (LTTE). He claims his mother remarried in [year] and that his [specified relatives] were killed by members of an opposing political party in 2002.

17. The applicant claims his [Relative B, named] is a supporter of Rajapakse’s party and worked closely with [a senior official] in [a named] district. He claims his [Relative B] argued with his family about their support and activities for the UNP, insisting they switch their support to Rajapakse’s party. He claims he was regularly harassed, intimidated and threatened by his [Relative B] when he refused to support Rajapakse’s party.  He claims his political activities caused him to be attacked in each of 2003, 2009 and 2013 causing him to flee Sri Lanka in fear for his safety.

18. The Tribunal was initially concerned about the credibility of the applicant’s claims, given his inability to recount or discuss his claims in any detail at the departmental interview conducted [in] August 2015 or the Tribunal hearings conducted on 18 April 2017 and 28 August 2017.

19. In the delegate’s decision dated [in] February 2016 (a copy of which was provided to the Tribunal by the applicant) the delegate stated that when asked a range of questions about his and his family’s involvement in the UNP, the applicant provided a vague and superficial response of limited detail. The delegate noted the applicant was unable to demonstrate any knowledge of the UNP and stated at interview he was unable to remember any details of the UNP’s political direction, platform or objectives. The delegate noted he was asked to detail his own involvement in the UNP but was unable to describe any of his own experiences including how he obtained membership, the reasons he supported the party or the activities he undertook for the party. The delegate concluded that despite the applicant’s claims to be suffering ongoing mental trauma, this was not supported by the medical evidence and in any event, his difficulty in recalling events appears to be limited to discussing his protection claims at interview.

20. At the Tribunal hearing on 18 April 2017, the applicant gave a similarly vague account of his activities for and involvement with the UNP in Sri Lanka. He told the Tribunal he was a member of the UNP and when asked about his role with that political party, he stated that he did a lot of things in those days. When asked what kind of things he did, he stated he went from place to place to find details of the opposition party. When asked if he was involved in any other activities, he stated he couldn’t remember.  When asked if he helped any particular candidates during election campaigns, he stated he did but was unable to name them.

21. When asked about the UNP’s policies and what they were trying to achieve, the applicant stated he couldn’t remember what their policies were. When asked if the UNP supported the government being more active in the economy or just leaving it up to private enterprise, the applicant stated he couldn’t say anything. When asked about his father’s involvement with the UNP, the applicant stated he did a lot for the party but he didn’t know the details. In respect of the claimed attack in January 2013, the applicant stated that he didn’t know if it took place during the day or at night and couldn’t remember how he was injured or if the police got involved. 

22. At the second Tribunal hearing on 28 August 2017, the Tribunal expressed concern with the applicant’s account of his political activities in Sri Lanka at the departmental interview and the first Tribunal hearing.  The Tribunal noted he had made detailed written claims about the political situation in Sri Lanka in his protection visa application, but was unable to detail any of those matters at interview or hearing.  The applicant gave evidence that he suffered memory problems as a result of the attack on him in January 2013. He stated that he remembered some things but didn’t remember other things correctly and is under the care of a doctor and taking medication.  He said when his condition becomes serious he goes to hospital.

23. The Tribunal discussed with the applicant his medical conditions. The applicant confirmed he is being treated for [condition] and under the care of a [specialist]. The Tribunal noted that while an undated letter from his GP submitted to the Department suggested he was being treated for blackouts and memory problems, the other medical reports submitted to the Tribunal made no mention of memory problems arising out of his medical conditions. Following the hearing on 28 August 2017 the Tribunal adjourned the review application to allow the applicant an opportunity to provide further medical evidence. 

24. On 17 October 2017 the Tribunal received further submissions and documents, including a letter dated [in] October 2017 from [Doctor A] of [a named clinic].  [Doctor A] states he is the applicant’s usual GP and the applicant has suffered from [symptoms] since suffering a [specified] injury as a result of an assault in Sri Lanka in 2013.  He states the applicant also suffers from [symptoms] and progressive memory loss and has been referred to a [named specialist], who saw him [in] September 2017 and requested further tests. 

25. On 13 November 2017 the applicant submitted further medical evidence, being a letter dated [in] October 2017 from [Doctor B], Registrar at [a health service].  [Doctor B] states among other things that [their health service] is managing the applicant for a combination of [symptoms], most likely caused by an acquired [injury] that he suffered in 2013 as the result of an assault.

26. On the evidence before it, the Tribunal accepts the applicant suffered a traumatic [injury] as the result of an assault in 2013 and continues to be treated for [specified symptoms]. The Tribunal accepts that one of the symptoms of the applicant’s medical conditions is memory impairment. The applicant has visible scars on [parts] of his [body].  At hearing he told the Tribunal the scar on [one part] was from the attack on him in 2003 and the scar on [another part] was from the attack on him in 2013. 

27. In view of the medical evidence before it indicating that the applicant suffers progressive memory loss, I accept the applicant’s medical conditions have impacted on his ability to recall details of his claims and I draw no adverse inference from the applicant’s inability to discuss details of his claims at the departmental interview or the Tribunal hearings.

28. In the delegate’s decision dated [in] February 2016 (a copy of which was provided to the Tribunal by the applicant) the delegate noted the applicant’s claims were inconsistent with statements made by his [Relative A, named] in his own protection visa application lodged in 2008. Those inconsistencies were raised with the applicant at hearing and later pursuant to section 424A in a letter dated 31 October 2017.  However in view of the significant amount of new documentary evidence submitted to the Tribunal in response to the Tribunal’s letter dated 31 October 2017, I draw no adverse inference from the statements of the applicant’s [Relative A] in his own protection visa application lodged in 2008 and I have given no weight to the apparent inconsistencies between the applicant’s claims and those made by his [Relative A]. 

29. Rather in assessing the applicant’s claims, I have given weight to the evidence of the applicant and his wife as well as the written statements of his family members and neighbours. I have also had regard to the written statements of [Representative C], MP [District 1] dated [in] April 2017; [Mr D], member of [Council 1] dated [in] November 2017; [Mr E] former member of the [Council 1] dated [in] November 2017; [Mr F] Justice of the Peace dated [in] November 2017; and [Mr G], UNP member of the [Council 1] dated [in] November 2013.  I have also had regard to the news articles, photographs, country information and other documents submitted by the applicant.

    The applicant’s family’s history and support for the UNP

30. The applicant claims he and his family members have suffered very serious harm in Sri Lanka for reasons of their political support of the UNP and he has produced a large amount of documentary evidence including from Sri Lankan politicians to support those claims.  In particular he claims his father was abducted and presumed killed by the LTTE in 1985 and his [specified relatives] were killed by political rivals in 2002.  However in assessing the applicant’s claims I note a number of inconsistencies in the documentary evidence:

    ·There are inconsistencies in the material before the Tribunal regarding the date of death of the applicant’s [specified relatives].  A copy of a medical certificate dated [in] August 2002 states [one of them] was brought into the [named hospital] on [a date in] August 2002 and was found to be dead when he was brought into hospital. The applicant’s [named sibling] states they were both killed on [a date in] August 2002. The funeral notice states [one relative] died [in] August 2002 and [the other] died on [another date in] August 2002. The applicant states in his written claims that [these two relatives] succumbed to their injuries in the days following the attack; 

    ·A letter dated [in] November 2013 from [Mr G], UNP member of the [Council 1], states the applicant’s [one specified relative] was killed in 2002 because of his political relationship with the UNP, but does not suggest the applicant’s [other relative] was also killed in the same incident for the same reasons;

    ·A letter from [Representative C], MP [District 1] dated [in] April 2017 states the applicant and his family are well known to him personally and are dedicated supporters of the UNP.  However he makes no mention of the applicant’s claims that his [specified relatives] were killed in 2002 because of their support for the UNP, nor does he suggest the applicant or his family are in danger for that reason.   

31. Notwithstanding those inconsistencies, in view of the significant amount of documentary evidence produced to the Tribunal post-hearing including from current Sri Lankan politicians about the family’s history and support for the UNP, I accept the following matters to be true:

    ·    The applicant and his family are long standing members and supporters of the UNP in Sri Lanka;

    ·    The applicant has been an active member of the UNP since he was a child, due to the active involvement of his family;

    ·    The applicant’s father [named] was one of two men abducted while on pilgrimage at [a location] in [1985] and was presumed killed by the LTTE;

    ·    The applicant’s [other relative, named] was killed in 1989 as a result of his political activities with the UNP;

    ·    The applicant’s mother later commenced a relationship with [a named person] although there was no official registration or church marriage because of the lack of the death certificate for the applicant’s biological father;

    ·    The applicant’s [specified relatives] were attacked and killed on or about [a date in] August 2002 as a result of political rivalry arising out of the family’s membership and support of the UNP.

    Attacks on the applicant in Sri Lanka

32. The applicant claims to have been attacked by political opponents including his [Relative B] in 2003, 2009 and 2013 however I remain concerned about aspects of these claims. 

33. I accept the applicant was attacked [at a location] with an iron bar in 2003.  I note the applicant’s wife gave evidence she met the applicant in 2005 and married him in 2006, that he was involved in politics with the UNP since their marriage and that his mother had told her he had been attacked [at that location] with an iron bar before she met him.  I have considered the applicant’s evidence the scar on his [body part] was from the attack on him in 2003 and I accept that to be true.

34. However I remain concerned about the applicant’s claims he was again attacked in 2009.  The applicant did not mention in his written claims or at the first Tribunal hearing that he was attacked in 2009, but stated at the second Tribunal hearing that police came to his house and took him to public places where they beat him up before he was taken to the police station and released.  However given my findings above as to his medical conditions, I give this little weight.  Of more concern is that the applicant’s wife made no mention of the 2009 attack in her written or oral evidence.  Nor is it mentioned in the statements of [Representative C], MP [District 1], [Mr D], member of the [Council 1] or [Mr E] former member of the [Council 1]. 

1. However in view of the statement of [Mr F] dated [in] November 2017 that he witnessed the attack on the applicant in May 2009 and the statement of [Mr G], UNP member of the [Council 1] dated [in] November 2013 making reference to that attack, I will give the applicant the benefit of the doubt and accept he was attacked in May 2009 for reasons relating to his political opinion as claimed.  I note the applicant confirmed at hearing that the attacks on him in 2003 and 2009 were not related to his [Relative B], rather he stated his problems with his [Relative B] began in 2010 in small ways and became aggravated over time.

2. The applicant claims that in 2013 he was assaulted at his home by his [Relative B], a supporter of Rajapakse who wanted the applicant to stop supporting the UNP.  He claims his [Relative B] was one of many UNP members crossing over to the Rajapaksa led Sri Lanka Freedom Party and his [Relative B] wanted to prevent the applicant from continuing his UNP activities.

3. I have considered the medical evidence from Australian and Sri Lankan medical professionals.  A diagnosis certificate dated [in] January 2013 indicates the applicant was admitted to hospital in Sri Lanka between [two dates in] January 2013 following an assault with a knife.  Medical records in Australia make reference to the applicant’s acquired [injury] sustained in an assault in Sri Lanka in 2013.  I accept the applicant suffered a serious assault in 2013 and suffered an acquired [injury].

4. However I have concerns about the circumstances in which he claims that assault occurred.  The letter from [Representative C], MP [District 1] states the applicant and his family are well known to him personally as dedicated UNP supporters, but makes no reference to any assault on the applicant as a result of his political activities.  While the applicant claims he was attacked by his [Relative B], the letter from UNP member [Mr G] dated [in] November 2013 states the applicant was seriously assaulted on [a date in] January 2013 by an unknown group.  This is despite the applicant’s claims that the assault was immediately reported to the police by his wife while she was at the hospital and his [Relative B] was detained by police for a period before being released. [Mr D] makes reference to threats and assaults suffered by the applicant without detailing those threats or assaults. 

5. There are also inconsistencies in the evidence about legal proceedings following the assault.  At hearing the applicant told the Tribunal that although his wife made a complaint to the police after the attack, no legal proceedings are underway and the hospital even denies his wife made a complaint.  The second named applicant confirmed she made a complaint, but said the police never came to take a statement from her and she didn’t know if they were making enquiries. A statement purporting to be signed by the applicants’ neighbours dated [in] April 2017 states it is a great sadness that no legal actions are proceeding against [Relative B].  [Mr E] states the applicant’s [Relative B] is still free from the law.  [Mr F] states the applicant’s [Relative B] is still free from the law and politically active.

6. Yet in an affidavit made [in] April 2017 the applicant’s mother states that a case is proceeding against [Relative B] in [a specified] Court.  A further statement purporting to be from the Headquarter Police Station in [that location] dated [in] April 2017 states a complaint was lodged in the [specified] Court after investigations were conducted.  In light of these statements, I do not accept the Sri Lankan authorities took no action against the applicant’s [Relative B] or that the applicant was denied the protection of the state authorities.

7. I note there is some support for the applicant’s claims in some of the other documentary evidence. [Mr E] states in his statement dated [in] November 2017 that the applicant was assaulted in January 2013 by his [Relative B] and he believes this was due to political issues due to the applicant’s [Relative B] being a strong supporter of the ruling party at the time.  [Mr F] makes reference to an assault on the applicant in January 2013 by his [Relative B].

8. While I continue to have some concerns about the inconsistencies in the evidence about the January 2013 attack on the applicant, I give the applicant the benefit of the doubt and accept he was attacked by his [Relative B] in January 2013 as claimed.  I also accept the assault was motivated by the applicant’s support for the UNP at a time his [Relative B] was a supporter of Rajapakse who wanted the applicant to change sides.

   Future risk of harm as a UNP supporter

9. I have accepted the applicant has suffered serious harm in the past for reasons of his support and his family’s support for the UNP.  As discussed with the applicants at the first and second tribunal hearings, there have been significant changes to the political and security situation since the applicant departed Sri Lanka as a result of changes following the end of the long running civil war in Sri Lanka in 2009 and the election of the Sirisena government in 2015. 

10. These changed conditions necessarily impact on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision.  In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward looking test.

11. As discussed with the applicants at the Tribunal hearings, DFAT reports that in the years since the end of the long running civil war between the Sri Lankan authorities and the Liberation Tigers of Tamil Eelam in 2009, the security situation in Sri Lanka has greatly improved with the Sri Lankan authorities exercising control over the entire territory of Sri Lanka.  Under the leadership of current President Maithripala Sirisena, who was democratically elected in January 2015, the Sri Lankan Government is focused on post-conflict reconciliation, transitional justice, and governance and economic reform.[3]

    [3] DFAT, DFAT Country Information Report: Sri Lanka, 24 January 2017 at [2.2]

12. In 2016, Human Rights Watch described the changes in Sri Lanka since the 2015 elections as ‘momentous’, with the new government abolishing surveillance and censorship of media and civil society groups, embarking on constitutional reform, taking steps to restore the independence of the judiciary and initiating more open dialogue with the international community and human rights groups.[4]

    [4] Human Rights Watch 2016, World Report: Sri Lanka, >

    The changed political environment following the 2015 Presidential and Parliamentary elections in Sri Lanka has a particular relevance to the applicant’s claims, as the UNP whom he supported while in opposition are now in power.  President Sirisena presides over a governing coalition ‘United Front for Good Governance (UNFGG)’, consisting of more than a dozen political parties including the UNP.  The UNFGG won 106 out of 225 seats in Parliament at that election, more than any other political party. The UNP’s leader Ranil Wickremesinghe is now the Prime Minister of Sri Lanka.[5] 

    [5] DFAT, DFAT Country Information Report: Sri Lanka, 24 January 2017; Parliament of Sri Lanka General Election Results, >

    At hearing the applicants accepted the political position of the UNP has changed since they left Sri Lanka, but said there was a 90% chance the UNFGG would lose the next election.  I consider this to be merely speculative and in any event the country information discussed with the applicant at hearing indicates the Sirasena government has brought about systemic changes to the governance of Sri Lanka.

13. I have considered the January 2015 report from the Centre for Monitoring Election Violence submitted by the applicants and I accept there were incidents of election related violence before, during and after the 2015 presidential election.[6]  DFAT reports that while democratic elections have been held in Sri Lanka on a regular basis since independence and never marred by large scale violence or rigging, they have not always been described as entirely free and fair.  However as discussed with the applicants at hearing, DFAT reports the 2015 elections proceeded relatively smoothly with the Presidential election in January 2015 described as being generally peaceful and orderly.  International observers described the Parliamentary election in August 2015 as ‘credible, met the key criteria for democratic elections and the outcome reflected the will of the people’.[7]

    [6] Centre for Monitoring of Election Violence, Final Report on Election Related Violence Presidential Election 2015 at

    [7] DFAT, DFAT Country Information Report: Sri Lanka, 24 January 2017 at [3.23]

14. I have accepted the applicant is a UNP supporter who has in the past suffered serious harm for reasons of his support and his family’s support for the UNP. However four years have passed since the applicants departed Sri Lanka, during which there have been significant changes to the political and security situation in that country.  In particular the UNP now forms part of the governing coalition in power and the UNP’s leader Ranil Wickremesinghe is now the Prime Minister of Sri Lanka.

15. In these circumstances I do not accept that on return to Sri Lanka the applicants will be questioned or subjected to intimidation or threats from corrupt police officers supportive of [Relative B] nor do I accept there to be a real chance they will be targeted by police, prosecutors or the judiciary who continue to support the return to power of the former President. I note in that regard that the applicants do not suggest they were targeted for harm by police, prosecutors or the judiciary before leaving Sri Lanka in 2013, despite Rajapaksa being in power at that time. 

16. Nor do I accept there to be a real chance the applicant will face serious harm from his [Relative B] if he returns to Sri Lanka. Firstly, the applicant claims his [Relative B] was free to harm him in 2013 because his [Relative B] supported the Rajapaske-led SLPF who were then in power.  The applicant claims that because he supported an opposition party, the UNP, the Sri Lankan authorities would not protect him from his [Relative B].  As set out above, the political situation in Sri Lanka has significantly changed since 2013: Rajapaske is no longer in power and the UNP forms part of the governing coalition.

17. There are also reasons particular to the applicant that cause me to consider it unlikely he will be at risk of future harm from his [Relative B] if he returns to Sri Lanka.  Firstly, almost five years has passed since the [Relative B’s] attack on the applicant in January 2013 and the applicant remained living in Sri Lanka for 11 months following that attack without further harm.  Secondly, the applicant claims the reason his [Relative B] harmed him in 2013 was that he wanted the applicant to stop his UNP activities and the applicant gave evidence at both Tribunal hearings that he would not get involved with the UNP again because of his medical issues.

18. In these circumstances I do not accept there to be a real chance the applicant will be harmed by his [Relative B] or political opponents of the UNP for reasons of his support for the UNP if he returns to Sri Lanka, now or in the reasonably foreseeable future.  Nor do I accept the applicant will be denied state protection by the Sri Lankan authorities in any dispute he may have with his [Relative B] or other political opponents for reason of his support for the UNP or any reason relating to his political opinion.

19. I note the applicant suffers from a range of medical conditions outlined above.  While I accept these conditions are debilitating and distressing for the applicant and his family, I do not accept there to be a real chance he will targeted for serious harm from any person or organ for any reason relating to his medical conditions.

20. It follows I do not accept there to be a real chance the applicant will face serious harm from any person or organ for reasons of his actual or imputed political opinion or any other reason, should he return to Sri Lanka, now or in the reasonably foreseeable future.

    Claims made by the second named applicant at hearing

21. A discharge summary for the second named applicant from the [specified] Hospital in [Australia] records that she was admitted following a high-speed motor vehicle accident [in] February 2015 and was expected to be discharged [in] March 2015. The discharge summary notes among other things [specified observations], the patient was managed with analgesia for [specified injuries] but no surgical intervention was necessary. She was discharged with follow up instructions.

22. I accept this motor vehicle accident was highly distressing for the applicants, made worse by the second named applicant’s [condition] at the time. It is not suggested any of the applicants will face harm in Sri Lanka for any reasons relating to this motor vehicle accident and I do not accept there to be a real chance any of the applicants will targeted for serious harm for any reason relating to this accident.

23. At hearing the second named applicant told the Tribunal that she feared returning to Sri Lanka because if something happened to her husband, she would be stranded with her child.  She stated if her child was to lose his father, she didn’t know his future.  For the reasons set out above, I have not accepted there to be a real chance that the applicant will be harmed for reasons of his actual or imputed political opinion if he returns to Sri Lanka, now or in the foreseeable future.  It follows I do not accept there to be a real chance the second named applicant would be left without a husband, or the third named applicant left without a father, if the family returned to Sri Lanka, now or in the foreseeable future.

    Complementary protection

24. In considering whether any of the applicants meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that one or more of the applicants will suffer significant harm. I have found the applicants are nationals of Sri Lanka and therefore find that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1) of the Act.

25. I have not accepted there to be a real chance the applicant will be harmed by his [Relative B] or political opponents of the UNP for reasons of his support for the UNP if he returns to Sri Lanka, now or in the reasonably foreseeable future.  Nor have I accepted the applicant will be denied state protection by the Sri Lankan authorities in any dispute he may have with his [Relative B] or other political opponents for reason of his support for the UNP or any reason relating to his political opinion.  I have not accepted there to be a real chance the applicant will targeted for serious harm from any person or organ for any reason relating to his medical conditions.

26. I have not accepted there to be a real chance the second named applicant would be left without a husband, or the third named applicant left without a father or that any of the applicants would be questioned or subjected to intimidation or threats by state authorities for reasons of their support for the UNP.  Nor have I accepted there to be a real chance any of the applicants will targeted for serious harm for any reason relating to the motor vehicle accident in 2015.

27. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in 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) definition.[8]  For the same reasons I do not accept there is a real risk any of the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka. 

    [8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]

    CONCLUSIONS

28. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a) of the Act.

29. Having concluded that the applicants do 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 any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

30. There is no suggestion that any of the applicants otherwise 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 applicants do not satisfy the criteria in s.36(2).

31. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

32. The Tribunal affirms the decision not to grant the applicants protection visas.

    Alison Murphy
    Member

    
    

    Attachment A – Summary of Relevant Law

33. 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.

34. 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 Refugees Convention.

35. 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 Refugees 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.

36. 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’).

37. 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 – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.