1603185 (Refugee)

This matter concerned an application for protection visas by a Sri Lankan national and his family. The applicant claimed he was a deserter from the Sri Lankan Air Force and feared imprisonment and harm upon return to Sri Lanka due to his desertion. He had arrived in Australia in 2008 and, after several visa changes and a period of unlawful employment, applied for a protection visa in 2014. The applicant’s wife and children also applied for protection visas as members of his family unit.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution or a real risk of suffering significant harm if returned to Sri Lanka, specifically in relation to his desertion from the Sri Lankan Air Force in 2001. The Tribunal was required to assess the credibility of the applicant's claims and consider available country information regarding the treatment of military deserters in Sri Lanka. A secondary issue was whether the applicant's wife and children, who had lodged applications as members of his family unit, were owed protection if the applicant himself did not satisfy the criteria.

The Tribunal considered evidence of a special amnesty for Sri Lankan Air Force deserters in 2009 and a proposed administrative process for Sri Lankan Army deserters in 2003. It noted that the applicant had not taken any weapons when he left the air force and had not been involved in criminal acts. Based on this, and the country information suggesting that deserters who had not taken weapons or committed crimes were typically discharged rather than prosecuted, the Tribunal did not accept that the applicant would be imprisoned or face serious harm upon return. The Tribunal found that the applicant had voluntarily returned to Sri Lanka on multiple occasions without incident and had delayed his protection visa application for six years, indicating a lack of genuine fear. Consequently, the Tribunal concluded that the applicant did not face a real chance of serious harm or a well-founded fear of persecution due to his desertion. As the applicant did not satisfy the criteria for a protection visa, his wife and children, who relied on his claims as members of his family unit, also did not satisfy the criteria.

The Tribunal affirmed the decision not to grant the applicants protection visas, finding that none of the applicants were persons in respect of whom Australia had protection obligations.