1604793 (Refugee)

1604793 (Refugee) [2019] AATA 5458 (28 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604793
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Luke Hardy
DATE:28 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 March 2019 at 2:02pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – staff member for MP – religion – Muslim – race – Tamil – credibility – inconsistent, exaggerated evidence – forged photo – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 424A
Migration Regulations (Cth), Schedule 2
CASES
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Sri Lanka. He entered Australia [in] March 2015 on a [temporary] visa. He lodged a protection visa application on 21 May 2015. The delegate refused to grant the visa on 24 March 2016. [The applicant] then sought review by this Tribunal.
[The applicant] appeared before the Tribunal on 4 September 2018 and 5 March 2019. He was accompanied on both occasions by his adviser, a registered migration agent. The hearing was facilitated by an interpreter in the English - (Sri Lankan) Tamil medium.
At the second hearing, I disclosed to [the applicant] that, at f.200 of his Department of Home Affairs (DHA) file [number], there is a “Certificate and Notification Regarding the Disclosure of Certain Information under s 438 of the Migration Act 1958” saying that material at f.199 is non-disclosable as it would be contrary to the public interest to disclose it. The document at f.199 is identified as “information relating to an internal working document and business affairs” and, being thus, is the subject of an invalid certificate.[1] The item is therefore disclosable; however, the same item, which described at the hearing and showed to [the applicant]’s adviser, is merely an internal DHA checklist in which a Department officer has ticked off steps taken to confirm [the applicant]’s identity. Since [the applicant]’s identity is not subject to any question, the document covered by the invalid certificate is not relevant to this decision; it has in no way played a part in my decision. I assured [the applicant] and his adviser thus, and they expressed satisfaction with my assurance.
[1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
[The applicant] claims to be a Muslim Tamil from [District 1] in Colombo. He initially lodged a protection visa application on 15 May 2015; that application was deemed invalid. A valid protection visa application was lodged on 21 May 2015.
[The applicant]’s claims relate to the factors of “political opinion and “religion”: see s.5J(1)(a) of the Act. Though Tamil, he did not initially made any explicit claims relating to “race”, but he made the claim explicitly later on.
In a statement dated 16 May 2015, [the applicant] claimed his father and grandfather are politically active in Sri Lanka. He claimed he was a university student active in youth associations when, with his father’s guidance, he joined the office of MP [Mr A] as his “[Job Title 1]”, responsible to the MP as his “central [District 1] [Job Title 2]”. He explained that Mr [A] was previously a member of the UFPA but defected with President Sirisena to the UNP in 2014. He said that due to Mr [A]’s defection a group attacked his office [in] December 2014. He provided independent evidence of this attack which evidently involved stone throwing from the street. Mr [A]’s car was also evidently vandalised. [The applicant] claimed he was in the office at the time of the attack. He said the attackers were armed. He said they saw him there and started calling him and threatening him. He said he was not concerned and kept working on Sirisena’s successful presidential election campaign.
[The applicant] claimed that after his party the UNP won the election on 8 January 2015, he and his father celebrated by giving away [products] at his father [business] in [District 1]. He provided photographic evidence of the [business] being visited [in] January 2015 by “numerous Colombo central ministers and politicians”. He claimed that after this he received so many “death warnings calls again from the unknown number” but did not take any of them seriously.
[The applicant] claimed that four days later, [in] January 2015, a group of thugs came looking for him at his father’s [business] at 3:00am, but could not find him because he had closed the [business] at 2:30am and gone up to the storeroom on the second floor with some of his staff members to check stock. He said his father’s [business] was near a [location] that attracted youths in gangs. He claimed that around 3:30am he heard members of the group down in the street demanding that he come down. He said he looked over his balcony to see a gang armed with [weapons] opposed by his “friends and youth supporters … defending against those thugs in front of my [business] trying to protect me, so I tried to go down…” He said his staff stopped him from going, warning that the group might kill him. He said that his friends started to flee the [weapons] whereas one of them was stabbed to death “in front of me”. He claimed to see local people chasing away the group after hearing the commotion. He claimed that one of the retreating gang members yelled to him that he would be next to die.
[The applicant] claimed that he went to the police intending to report “this warnings”. He claimed the police only told him they could not protect him because he was “a single civilian”. He did not suggest that he assisted the police as a witness to the chasing and killing of the youth in the street below his [business], as part of their murder investigations mentioned in a media article cited below.
[The applicant] claimed that his local community investigated the event of the murder and came to suspect that the killers belonged to an “underworld group that might [be] connected to [B]odu [B]ala [S]ena [an] opposite political group”. He said that this group did not like that he was becoming “a Political leader in future” and was thus trying to kill him. He said this group was a Buddhist group that opposes Muslim influence in Sri Lankan society.
[The applicant] submitted a copy of a [date] [report] from [News Source 1] referring to the stabbing of a youth that morning in front of the [District 1] mosque. The report, like [the applicant], did not name the deceased; it said the killers were a “Group of unidentified personals”. The report said that police were conducting enquiries. [The applicant]’s account of the police taking no interest in his situation struck me as being somewhat incongruous with this report, especially since he claimed the gang was calling for him before being distracted by his friend.
[The applicant] submitted to the Department a 9 April 2015 letter from Mr [A] in which he described [the applicant] as having been “my personal staff and my coordinator for [District 1] area in Colombo for [a specified policy area]. Mr [A] said that when his vehicle came under mob attack [in] December 2014, [the applicant] “was present”. He said that [the applicant] was a strong supporter during his “cross over” from the UFPA to the UNP and had cordial relations with [people] in the [District 1] area. He said he was “aware [the applicant] also had serious threats to his life from local gangs who [are] against reforms.”
[The applicant] submitted to the Department a 10 April 2015 letter from a lawyer called [Mr B]. In the letter Mr [B] says that [the applicant] and his family have sought his advice on past occasions regarding death threats “faced by gangs attached to political groups”. He asserted that [the applicant] is a “Potential witness in Two Cases more particularly … [Mr A] MP – official vehicle attack on [date]-12-2014 [and] Case where a Youth stabbed to death in [District 1] [date]-01-2015”. The lawyer said he personally appeared in court in the first case (the vandalism case) that saw four suspects remanded and was asking for court records presumably so that [the applicant] could produce them as evidence in this matter. None have been presented.
[The applicant] submitted to the Department an MP4 file featuring a mobile telephone video of a screened footage taken from a CCTV camera. The footage, which is graphic, shows a neon-lit corridor opening in the background to a few steps and a street. Around the one minute mark a man is seen being chased into the corridor by one person with a long plank or piece of metal and then another man. The assailant is seen clubbing the first man to the head until and after the latter falls to the ground, and after that the second assailant appears to punch or stab him twice near his head or neck. The two assailants flee quickly. There is a lot of blood. The victim tries to right himself raising his legs off the ground, but collapses in spasms on his side. After half a minute a third man, possibly a passer-by approaches, sees the victim on the ground, takes a closer look and walks off. After another half a minute a crowd of half a dozen males enter the corridor and lift the seriously injured man away from the scene. Around a minute passes between the hasty departure of the assailants and the rapid appearance of the second group. There is no sound. The filename for this material is “frnd murder”. The material purports to the description of events given in [the applicant]’s statement, but video does not help show how this killing inside a corridor could have been seen from a balcony one floor up from the ground across the road.
[The applicant]’s valid protection visa application included attachments ranging from his birth certificate, to educational and sporting certificates, copies of IDs issued by educational, sporting, cultural and [other institutions] in Colombo and the office of his then-local UPFA party MP [Mr A]. He submitted a copy of a “[January] 2015” letter from the president of [Organisation 1] saying he was an active and appreciated member of that body from October 2013 to January 2015.
There is also a translation of a purported 6 May 2015 statement to police from [the applicant]’s father in which the author claims that his son worked [for] Mr [A] who defected “to another political party” (the UNP). [The applicant]’s father reports that his son was at the residence of Mr [A] when that residence was attacked by a group of people. The author said [the applicant] “was produced as a witness to the incident”. He said [the applicant] later received death threats over the telephone. He said he did not complain to the police about this at the time. He said that threatening telephone calls against [the applicant] increased after the 8 January 2015 presidential elections, causing him to decide to send [the applicant] to Australia. He said that 20 days after his son left, he started receiving threatening telephone calls at the [business] he owns. He said the unidentified caller spoke in Sinhalese, saying, “Where is your son, and give us him, otherwise, we would not let anybody live in your house”. The author went on to say that in the evening before the date of this report an unidentified man called him again at his [business] and threatened not leave the family be unless [the applicant] was handed over to him. At no point in this purported May 2015 statement does [the applicant]’s father refer to the alleged January 2015 episode of the [armed] gang trying to call [the applicant] out of his [business] in the wee hours of the morning and, failing to do so, turning on his friend and “fellow [worker]” and hacking him to death, afterwards allegedly telling [the applicant] that he would be the next to be murdered in the fashion purportedly witnessed.
[The applicant] submitted his passport to the Department; it shows he was absent from Sri Lanka in [Country 1] from [December] 2014 to [January] 2015, his absence indicating that he was not active locally during the latter part of the January 2015 election campaign or election day.
Pre-hearing evidence to the Tribunal
On 29 August 2018, [the applicant] submitted a statutory declaration and a submission from his adviser. In the statutory declaration, [the applicant] sought to rebut a finding he attributed to the delegate relating to Mr [A] MP choosing and being able to remain in Sri Lanka whereas he himself had left. He said that Mr [A], being “important”, is able to call on protection from police who will not be able to protect someone like himself. He said that although he hid just prior to coming to Australia, there is nowhere he can hide without being discovered in time. He said that he had watched a friend of his called [Mr C] die because of him. This was the first time the name of the victim at the mosque was brought to light in this whole matter. Documents naming the stabbing victim were evidently obtained by [the applicant] before 29 August 2018, but they were not sent to the Tribunal until the next day.
[The applicant] rebutted findings from the delegate as to anomalies in various ID cards, saying these involved innocent errors rather than forgery. He also rebutted negative inferences as to a perceived delay on his part in leaving Sri Lanka, saying that he went when told to go by his father, who had arranged all of his travel including his visa. He said that although the delegate drew negative inferences from his not having applied for protection until two months after his arrival in Australia, he did not apply sooner because he had been waiting to find out if his parents considered it safe for him to return to Sri Lanka, only to hear from them that they were continuing to receive harassing telephone calls, the situation thus only growing worse.
[The applicant] said he had not been represented throughout the course of his primary application and had only engaged a lawyer after deciding to seek merits review. He went on to declare that his family had been long-term supporters of the UNP due in part to its support for Muslims in Sri Lanka, his grandparents and father being well-known and –respected members of the local community assisting in local welfare projects and being available to lobby politicians on behalf of citizens. He said his father is a UNP member and best friend of Mr [A], even though the latter had first been elected to parliament as a member of the UFPA: being the local member for [Electorate 1], he had never been a local opponent in the eyes of [the applicant]’s father.
[The applicant] declared he was not a member of the UNP but nevertheless a supporter with a track record in voluntary community work. He said this helped him gain [a position] through his father’s intercession with Mr [A]. He said Mr [A] made him his [Job Title 2] and that, as such, he would organise meetings to “discuss local issues” (like [deleted]) in [District 1], sometimes at his home, or in his father’s office or at the mosque. He said his late friend [Mr C] [helped] him speak out [with certain issues]. He claimed he also used to speak out publicly against the Bodu Bala Sena (BBS). He said that when BBS members used to threaten him over the telephone they would identify themselves as BBS members with a sense of impunity. Previously, he had claimed that the callers’ link to the BBS was merely something suspected by members of the community in which he moved. (See paragraph 19 above.)
In his statutory declaration, [the applicant] referred to the CCTV footage submitted to DHA. He said this recording was made at the mosque. He went on to declare that some of the things he had said in his original statement, prepared without help from an adviser and an opportunity of “reviewing this information”, now needed “clarification”. He said that his “friends and [supporters] … defending against those thugs in front of [his father’s] [business] to protect [him]” was not correct as it suggested there was more than one person there trying to defend him. He said that [Mr C] was the only person “to initially confront the attackers”. He said that other people who became involved on the ground were not his friends and supporters. He said that after the killing he was afraid to leave his house. He said he did not know why the men who attacked the [business] and killed [Mr C] did not attack his family home after that, positing that it might have been a bigger risk to attack a family home in a Muslim neighbourhood rather than a Muslim-owned [business] in a mixed business high street. I have weighed this suggestion against two factors: [the applicant]’s family business was evidently not attacked, let alone with arson; and independent information (cited below) reports the BBS, in campaigns against Muslim targets in Colombo suburbs, committing arson attacks on several individual Muslim homes there, as well as Muslim businesses.

[The applicant] maintained that his family still received telephone calls “for a period”. He did not say specifically when this period ended, but he appeared to indicate that it had.
[The applicant] said he feared being killed in Sri Lanka for being a member of a family of prominent Muslims, for supporting the UNP, for being a Muslim (), for having spoken out against BBS, for supporting welfare for Muslims, for supporting Mr [A] and for being a local activist. He said the authorities will not be able to protect him in the medium to longer term. He said that although conditions for Muslims have improved under the current government, it still cannot control the BBS. He said he cannot relocate because the BBS would still pursue him, exploiting Sri Lanka being a predominantly Buddhist country.
[The applicant]’s new adviser, who attended the Tribunal’s hearings, provided a written submission on 29 August 2018 summarising the claims in this case and providing legal argument. Amongst his arguments, citing s.5LA(2)(c) of the Act, he said that [the applicant] cannot enjoy protection from being persecuted in Sri Lanka if he cannot access an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The advisor devoted a portion of his submission to citing independent country information including material reporting inter-party and inter-ethnic violence during election campaigns in 2015 and 2018. I am aware that the February 2018 local government election campaign was marked by inter-religious and inter-racial violence: the UNP-led government declared a 10-day state of emergency in the wake of the elections to quell conflict between Muslim and Buddhist activist groups, which had been particularly destabilising in the city of Kandy.[2]
[2] “Sri Lanka declares state of emergency after Buddhist-Muslim clashes,” The Telegraph (UK), 6 March 2018,
The advisor cited independent information about attacks on Muslims in 2017, noting that the attacks were confirmed by DFAT in its 28 May 2018 Country Information Report: Sri Lanka. This material pre-dates information indicating a crackdown and arrests in mid-2018.
The advisor’s submission concludes with legal arguments and citations from Court rulings regarding credibility, apparently to address the overall negative credibility findings made by the delegate.
On 30 August 2018, [the applicant] submitted further material, including a copy of 15 January 2015 post-mortem report for an adult male man, cause(s) of death “haemorrhagic shock due to head [and] neck injuries caused by heavy, [sharp?] cutting weapon/s”. The reporting in this report as to injuries sustained by the victim is consistent with the CCTV footage described above. The name of the subject of this report is “[name]”, which is a transliteration acceptably close to “[Mr C]” and “[name]”, which are versions of the name that appear in other items submitted on 30 August 2018.
[The applicant] submitted a copy of a 17 May 2016 letter from a spokesperson for the trustees of the [District 1] mosque in which he is described as a member of the mosque community and a “[Job title 2] at our community despite the fact that he is known as a young politician”. The letter states that [the applicant] has been helpful in the mosque’s work in [a certain area] and helping his father to raise donations to help Muslim people in [named town] who lost their houses in a notorious BBS attack [in] June 2014. This letter does not refer to the killing of [Mr C] or to [the applicant]’s claimed association with the latter in activities at the mosque.
[The applicant] provided evidence of his father’s ownership of the “[business]” opposite the [District 1] mosque. He also provided copies of photographs of his father socialising with persons described as politicians and community leaders. He provided a copy of a translation of a purported certificate issued and signed by [an official] on election day 8 January 2015 in recognition of the contribution made by [the applicant]’s father to the UNP’s election campaign.
[The applicant] submitted a 22 May 2016 letter from his family’s local MP identifying [the applicant]’s father as a supporter of the UNP and [the applicant] himself as a “young politician” who was active in social services.
Prior to the 4 September 2018 Tribunal hearing, [the applicant] submitted a small photograph album containing: some twenty images featuring him and others at his father’s [business], including images of [products] being handed out to the public in the company of visiting politicians public figures; around three photographs of [the applicant]’s father socialising with public figures including Mr [A]; one image of [the applicant] appearing to receive a local citation; and a photograph purporting to show [the applicant] in a seemingly private indoor gathering between Mr [A] and a handful of other politicians. As shown below, the last of these photographs became the focus of much enquiry on the Tribunal’s part.
The first Tribunal hearing
The adviser showed me a Google Earth panorama of the street in which [the applicant]’s [business] and the [District 1] mosque stand. I was satisfied from this that both buildings [are nearby], in [District 1], Colombo, although it was not clear that events inside any corridor leading from the street into the mosque could be seen from the first or second floor of the [business], given that the corridor is reached by a few steps that begin in a doorway under an awning.
I asked [the applicant] about the night of the murder. In his description of it, he said that up on the second floor he heard arguing on the street and his name being mentioned. He said that “through the balcony” he saw fighting. He said that people told him not to “come down” because others were looking for him. I asked [the applicant] if he saw [Mr C] being killed, and he said, “He was injured. I saw him run into the mosque.” I put to him that I was asking for clarification of the claim in his 16 May 2015 statement about [Mr C] having been “stabbed to death in front of me”. In response, he said this statement means “in front of our [business]”.
[The applicant] told me he attended [College 1] until he came to Australia. This differed from evidence he gave in his protection visa application about only attending [College 1] up to December 2013. It also appeared not to sit with claims about going into hiding after the murder of [Mr C].
[The applicant] told me he studies [subject] part-time, working in other hours in his father’s [business] and in Mr [A]’s Colombo office as Mr [A]’s [Job Title 1]. I put to [the applicant] that the role of being a politician’s [Job Title 1] sounded more like a full-time job; in reply, he said that he was actually just there in that office “to get knowledge to learn how to be a [Job Title 1]”. This response left other evidence about the MP’s office job from [the applicant], his father and Mr [A], all together, seeming exaggerated. [The applicant] said he did not now the salary of Mr [A]’s [Job Title 1] because he was just [a certain role]. I asked [the applicant] if he could identify Mr [A]’s salaried [Job Title 1] and he said that person was Mr [A]’s wife who had [a number of] staff working under her, the [number] possibly being full-time staff, although he was not sure. He said that in his capacity [he] attended the MP’s office [part-time].
I asked [the applicant] to describe what was happening in the last photograph described above. He said it was a photograph taken on the occasion of a parliamentary meeting for MPs in the “Town Hall”. He said he was granted permission on that occasion to participate. Since all the other men present were wearing suits or, at least collared shirts, I asked him why he appeared to have responded to the invitation by attending in a T-shirt, and he said that during proceedings he sat “on the other side”, presumably of the hall, from the parliamentarians, just to gain knowledge. He named three people in the photograph including the bearded Mr [A] and a councillor called Mr [D]. He said he did not know who the other person was. I asked him who took the photograph and he said that Mr [D] had with him that day a “cameraman” who took it. He identified various people in the photographs taken at his [business] and in the images of his father and [brother] socialising. He said the photograph at the citation depicted him receiving [an award] from [a company].
I asked [the applicant] to describe what his [brother] is doing in Sri Lanka and he said he is studying full-time. He said the family [business] is still operating, run by his father. He said his [siblings] live with his parents in their family home.
I drew [the applicant]’s attention to another photograph, apparently taken in his family [business], featuring him in a T-shirt in the company of seven casually dressed men including one bedecked in garlands. He identified the latter as his local MP, [Mr E], an ethnic Sinhalese who, I note, is a UNP member and [government official].[3]
[3] [Source deleted]
I showed this photograph, which I shall call P1, to [the applicant], alongside the photograph purportedly taken at the politicians’ meeting in the Town Hall, which I shall call Q1. I put to [the applicant] that Q1 was a doctored and therefore counterfeit image, in that, whereas this would be very unlikely in life, he appeared to be of absolutely identical countenance in both photographs. This was strongly apparent to me from the precisely-repeated distribution of hairs across his forehead, the pursing of his lips and the small point at which the neck of his T-shirt slightly wrinkled, although the colour of the T-shirt, grey in P1, was white in Q1. I noted one difference in that in P1 the top of [the applicant]’s hair appeared quite sharply against a background of blue and white advertising, whereas in Q1 the top of his hair blurred conspicuously compared to other heads into the room’s white background: based on my familiarity with PhotoShop,[4] it appeared on the face of things that a blurring tool and a contrast filter had been used to settle [the applicant]’s head from one photo into another.
[4] AEH of 2002 v Minister for Immigration [2002] FCA 927 at [13] per Branson J, in which His Honour finds that the Tribunal is entitled to rely on its own knowledge or personal experience to inform its view of relevant issues.
In response, [the applicant] said that his face is “always like that” and that he had no need to contrive a “fake” photograph.
This seeming to be a potentially serious matter, I offered [the applicant] a ten-minute adjournment to discuss it with his advisor. After ten minutes, the advisor asked for additional time and I granted a further twenty minutes.
When this first hearing resumed, [the applicant]’s advisor spoke under [the applicant]’s instruction. He said that [the applicant] maintained the event at which the photograph of the politicians (Q1) was taken. He said [the applicant] recalled that a number of photographs were taken on the day of the gathering. He said that [the applicant], who previously asserted to be that the photograph Q1 was taken the day he attended the meeting, with him present for the taking of it, was unable to confirm that Q1 was taken on the day he attended. He said [the applicant] claimed that he was given the photograph Q1 “by a friend”. He said [the applicant] acknowledged that there were similarities between P1 and Q1 with particular regard to the appearance of his face and head.
I informed that although I was confident in my own visual impressions of the empirical evidence of fraud in this case, I would nevertheless try to obtain the opinion of facial identification experts. [The applicant]’s adviser said that there is in any event a lot of evidence supporting his client’s claims about his relationship with Mr [A] and invited me to ask his client more questions.
I asked [the applicant] if Mr [A] still sits in parliament and he said he does. I asked [the applicant] if Mr [A] continues to have staff working for him and he said he does. I asked how Mr [A]’s staff manage to be protected from the harm that he claimed a [Job Title 1] faces in such an office. In response, he said he was not sure if Mr [A] still employed old staff or now has new staff, and said that his own problems arose when the BBS came into contact with his own local community.
I reminded [the applicant] of his original claim to the effect that he heard from friends that they suspected the BBS was responsible for killing [Mr C]. I asked him how he came to know or suspect that it was the BBS that was seeking to harm him and he indicated he had deduced this on the basis of the BBS being the only group that attacks Muslims in Sri Lanka at that time. He was still saying that he came to the conclusion by a process of deduction. However, this response did not appear to sit with earlier written evidence to the effect that [the applicant] learned that he was dealing with the BBS because the unknown individuals who called him on his telephone explicitly said they were with the BBS. He also seemed to suggest in earlier evidence that the roots of the campaign to harm Mr [A] and him lay in Mr [A]’s defection from the UFPA to the UNP: this suggestion indicated that disaffected people other than the BBS might have inflicted harm such as by damaging Mr [A]’s office and car.
I questioned [the applicant]’s assumption that the BBS was trying to prevent him from becoming a “future political leader” because they did not appear to have been blamed for harming Mr [A] or his staff: the attack on the office and car had been attributed to disaffected UFPA supporters; Mr [A] and staff appeared not to have been harmed since 2013. In response, [the applicant] said he believed the situation involved a personal campaign against him. He then described charitable works he had done with his father, appearing to suggest that this kind of activity irritated the BBS. I then put to him that his father also seemed to have travelled the recent years unharmed. In reply, [the applicant] said that after he left Sri Lanka his father received calls demanding to know where he had gone. He said his father complained to the police about those calls. I put to him that on this evidence his father himself was not threatened, and he said his father was not. I reminded [the applicant] that he had said his father was involved in the charity too, and [the applicant] said that he himself has been a community leader. I note he has elsewhere described his father as a prominent community figure with many contacts in public life.
I asked [the applicant] to name the group he led and he called it “[District 1] youth”. He said the group used to meet in the mosque and discuss [issues]. I asked him who is running “[District 1] [group]” now and he named a person called “[Mr F]”. He went on to say that [Mr F] does not work like he himself used to work due to past local “problems”. He said that the group is not really active now. However, I note that his initial answer to my question indicated that the group is still operating and is run by a man called [Mr F]. When I put to [the applicant] that according to him the group still runs to some extent, he said, “No.” In this way, he seemed to reverse his evidence about the group having continued in his absence. He said that his father had told him, “No-one stands up like you.”
I asked [the applicant] to describe his relationship with [Mr C], and he said he was “my secretary.” I asked him his own title and he said “president”. He said he had founded the organisation and that it had 36 members.
I announced that I would soon adjourn the hearing and not continue until after I had dealt further with the issue of the apparent forgery. [The applicant]’s advisor then sought to make some observations. He said that no adverse inference should be drawn from [the applicant] having initially said that [Mr C] was killed “in front of me” as [the applicant] had made his first statement without assistance. He said that the killing occurred “effectively” in front of [the applicant] because it happened across the street from [the applicant]’s [business].
The advisor said that references to the second floor of [the applicant]’s [business] may be references to the first floor. (I note that both floors have balconies of sorts.)
The adviser said that killing of [Mr C] was not an isolated incident, loosely referring to violence committed by the BBS on other occasions. I asked if the killing of [Mr C], if politically-motivated, might have been election payback violence and therefore peculiar to a particular socio-political season in Sri Lanka, and the advisor said he did not agree because there were instances six months prior to the hearing. The advisor’s response did not, however, help to rule out that violence peeks close to elections, because the country’s 2018 local government elections were held in February[5] of that year, around six months before the first hearing of this matter. The advisor went on to say that the incident involving [Mr C] could not be regarded as campaign violence or post-election revenge because the perpetrators had been calling out [the applicant]’s name individually.
[5] “In Sri Lanka, local elections have rattled the government: It still has crumbs of comfort,” The Economist, 17 February 2018,
The advisor drew attention to [the applicant] having been able to provide many answers during the hearing without hesitation, such as when asked about how many people were members of “[District 1] [group]”.
The advisor went on to say that he and his client would try to gather more information on the issue of the safety and security of Mr [A] and his staff. He advised that his client has a unique profile, however, that sets him apart from mere political staffers in that he is involved with a number of groups including “[District 1] [group]” and [Organisation 1] as well as having worked with Mr [A], a critic of the BBS, in addition to coming from a political family and a Muslim one at that. Notwithstanding this iteration of distinctions, the advisor did not appear to be attributing to [the applicant] any affiliations not pertinent to or embraced by Mr [A] and his office. [The applicant] had said himself that Mr [A] appointed him to be [Job Title 2] for [District 1]: a clear statement to the effect that Mr [A] and his office were involved in all of the things in which [the applicant] claimed to have a local profile.
The advisor went on to say that [the applicant] was different from Mr [A] and his staff in that he had only been [a volunteer] and had therefore not been (and would not in future be) able to access protection like Mr [A]’s “formal staff”. I have weighed this with the evidence provided to the effect that [the applicant]’s father is a merchant, political donor and scion of a political family with connections to holders of public office who appears from all accounts to have been able to enjoy state protection along with the rest of his family.
The two photographs: s.424A issue
After adjourning the hearing, I made several attempts to gather other opinions about the veracity of and apparent forgery in photograph Q1. The Tribunal was eventually put into contact with DHA’s Forensic Facial Image Examiner. Asked if [the applicant]’s face as it appears in Q1 was cut-and-pasted from his face as appears in P1, the Examiner applied a “red-green overlay method” to assess common “pixel density value” or in lay terms “evidence of identicality”, as it were. The Examiner’s report presented P1 and Q1 copied to the same page with a PhotoShop CS6 “red-green overlay” set between them. The overlay showed identical pictorial features highlighted in green, indeterminate features highlighted in yellow and different features highlighted in red. All of [the applicant]’s face, neck and hair was highlighted in green, meaning that it was found to be precisely common to both photographs. The outline of [the applicant]’s face, neck, hair and T-shirt neckline was a thin thread of yellow, as were two small areas of shadow in his upper eyelids, thus registering as “indeterminate”. Only the background, blurry advertising in P1 and blank white in Q1 registered as red.

On 8 January 2019, the Tribunal wrote a letter to [the applicant] under the protocols of s.424A:
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
In conducting the review, I am required by the Migration Act 1958 to invite you to comment on or respond to certain information which I consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that I have not made up my mind about the information or your claims overall.
The particulars of the information are contained at and above paragraph “4. Observations” in the attached 2 November 2018 response from the Department of Home Affairs Facial Image Comparison Unit.
Answering a request from the Tribunal as to whether the image of the you in the photograph identified as “Q1” at paragraph “3. Examination request” was a duplication of his image as it appears in the photograph identified as “P1”, the Facial Image Comparison Unit stated that on applying a red-green overlay method in PhotoShop CS6, it found that the areas highlighted in green, featuring your face were essentially identical. The Facial Image Comparison Unit essentially found that “Q1” contained a duplication of your image as it appears in “P1”. The “Red Green Overlay” image featured just above paragraph “4. Observations” appears to demonstrate this very succinctly.
A reasonable inference from this information, as well as from the Tribunal’s empirical observation as disclosed at the 4 September 2018 hearing of this matter, is that image “Q1” is a composite of two separate photographs, one being the basic image featuring six men, all in collared shirts, standing inside an office or library, and a “cut-and-paste” appropriation of your face, shoulders and the T-shirt you were wearing in the [business] image identified as “P1”, the colour of the T-shirt having been desaturated to white in the process.
This information is relevant to the review because it appears to be evidence of fraud and deception. The image identified as “Q1” has been submitted as evidence of significant, close and high-profile involvement on your part with politicians and political staff in your electorate in Sri Lanka, and yet this particular item of evidence appears on expert advice to be false.
If I rely on this information in making my decision, I may have reason to doubt that your political activity has been as significant as claimed. This may lead me to conclude that your support for your local MP has not aroused the nature and level of antagonism from political opponents that you have claimed. Concomitantly, in view of the submitted photographic evidence appearing unreliably to exaggerate your link to the parliamentarian Mr [A] and others, I may disbelieve your oral evidence to the effect that the gang that reportedly killed the youth alongside the mosque at [District 1] in January 2015 had been seeking and calling for you at the time, or had or has any potentially relevant interest in you overall.
In the event, I may find you an unreliable witness in this matter and conclude that you are not entitled to a protection visa, notwithstanding evidence of your father’s affiliations and your evident placement as [a volunteer] in Mr [A]’s parliamentary office in 2014.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 23 January 2019. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 23 January 2019, you may ask for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 23 January 2019 and you must state the reason why the extension of time is required.
I will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If I do not receive your comments or response within the period allowed or as extended, I may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.
We are returning the two photographs to you so that you have the original images to assist you in the making of your comments/response to this letter. Please retain these photographs securely to avoid misplacing them, as the Tribunal may request to see or place this evidence on file in the future.
On 18 January 2018, [the applicant], providing reasons, sought an extension of time to 15 February 2019, and I granted the extension.
[The applicant] submitted the following statutory declaration on 15 February 2019, commenting on and responding to the s.424A letter of 8 January 2019:
I, [Full name], [Occupation 1], of [address] in the State of New South Wales, [make] the following declaration under the Statutory Declarations Act 1959:
1. I am providing the following information to the best of my recollection in response to a request for further information from the Administrative Appeals Tribunal on 8 January 2019.
2. The images in question (P1 and Q1) were submitted by me to the Department of Immigration as part of my application for a Protection visa in May 2015.
3. About a week prior to submitting the application I contacted my father in Sri Lanka and asked him if he could post some photos and other evidence in my case to me. My father agreed to do so.
4. Shortly after contacting my father, a package arrived at my address via DHL addressed to me from my father. The package contained a photo album as well as a number of loose photos in a brown paper packet that I placed inside the album. Images P1 and Q1 were among these photos, however I do not specifically recall whether they were inside the album or the brown paper packet. The package from DHL also contained a USB which had video footage of my friend's murder.
5. I submitted my application for a Protection visa (including the photos) to the Department of Home Affairs very soon after I received the package from DHL, either the same day or the following day. I recall that I glanced through the photos before submitting them but I didn't pay them close scrutiny as I had no reason to suspect there was anything amiss with them.
IMAGE P1
6. Image P1 is a photograph that was taken in the lead up to the election that took place in early January 2015. The photograph was taken in my family's [business].
7. The figure on my immediate right is [Mr E], who was a [Government official] of the UNP. The photo would have been taken sometime during his election campaign, either late 2014 or very early in January 2015. He was visiting local supporters of the UNP and spent about 30 minutes visiting my family in our [business].
8. Several of the others in this photo are members of the same political youth organisation as myself. They are [three named persons]. I believe the person on the very far left was Mr [E]'s bodyguard.
9. To my recollection, the image was taken by the photographer who accompanied Mr [E] while he was campaigning. About a week after the photo was taken, a number of photos taken by Mr [E]'s photographer were delivered either to the local mosque or directly to the youth organisation of which I was a member. Sometime later, I collected the photo.
10. I do not know if there were any other copies of this photo made available, but it's possible that there were duplicates and others would also have obtained a copy of this specific photo at the same time as me.
IMAGE Q1
11. I do not specifically [recall] seeing Image Q1 among the personal photo collection at my family home in Sri Lanka and I do not know exactly how it was obtained. When I received this photo among the others from my father in May 2015, I simply assumed that this was a picture taken at an event at the Town Hall that I attended in September 2014.
12. The person immediately to my left in the image is [Mr A]. Also pictured is [a named person] who is a member of the municipal council in my area, and [another named person] who is also an MP. The person on the far left and the person third from the left I do not know. I am sure that I did attend the function at the Town Hall and I remember having my photo taken several times with different people. I also recall that we were not allowed to use our own cameras or phones at the event; only the paid photographers at the event were permitted to take photos.
13. On the evening of about [date] January 2019 I had a conversation over the phone with my father. During this conversation I asked him where he had obtained the photos that he sent to me in May 2015. My father explained he gathered them together from multiple sources, including photos that were in my cupboard at the family home, my personal photo album which contains all of my documents (including certificates from when I was at school and of all my community engagement), my family's photo album, the family [business], as well as photos from friends / members of the community and people within [Mr A]'s office. I asked him which friends and community members he had obtained photos from but he said he couldn't remember.
14. I asked my father specifically about where he got Image P1 and Image Q1 from, but he was confused and could not answer my question definitely. I also asked my father whether he was responsible for creating Image Q1 but he denied this. I can only assume Image Q1 was provided to my father by someone else in my community, but I am unable to say who.
I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
The statutory declaration acknowledges that Q1 is a forgery, whereas [the applicant]’s initial response had been that what I saw was merely his characteristic, default countenance.
The statutory declaration is not helpful as to the provenance of Q1. This is in contrast to a somewhat meticulous recollection as to how he received a copy of P1. One can construct a possible provenance from the “paid photographers” to Mr [A]’s office, assuming that the paid photographers had no logical reason to send Q1 to [the applicant] by such an indirect method as via friends or relatives. Harder, though, is to conceive a motive for faking [the applicant]’s presence in the photograph and then sending or delivering it when, as claimed, there were several photographers and numerous photographs taken through the day of the Town Hall gathering.
I note that in this statutory declaration, [the applicant] claims he was sent photograph Q1 by his father. Beyond coming from his father he claims no knowledge of its origin. However, , after I first raised with [the applicant] the evidence of forgery, he instructed his advisor to say to me that he had been given photograph Q1 by a friend. His evidence about its provenance is inconsistent.
Not one of the photographs that [the applicant] said was taken of him with the politicians at the Town Hall has turned up in evidence. All that I have before me to mark the supposed occasion is the forgery. [The applicant]’s claim to the effect that a number of photographs were taken of him with the politicians at the Town Hall gathering remains unsupported.
[The applicant] also submitted a 20 February 2019 statement from his father:
I, [Full name], Business Owner of [address] Colombo, Sri Lanka make the following statement:
1.          I am the father of the review applicant, [Full name].
2.          Shortly after my son arrived in Australia, he asked me to send him evidence of his and my family's connection with [Mr A] and our involvement in politics generally, including any photographs.
3.          I gathered up a number of photographs and other documents that I thought might assist him after I spoke to my son. The other documents included [the applicant]'s documents relating to his studies and a number of identity documents.
4.          I also approached [Mr A]'s office after speaking to my son. I explained to [Mr A] and to people in his office that I needed evidence of the relationship between [Mr A] and my son and his political activities.
5.          [Mr A] provided me with a letter and members of his staff provided me with, to the best of my recollection, about two of three photographs. I cannot remember which photos I received from [Mr A]'s staff.
6.          In addition to approaching [Mr A], I approached a number of my son's friends when they came to my [business] and asked if they had any material that may assist my son.
7.          Some of my son's friends were able to provide me with about four or five photographs in total as well as some of the documents. One of the people was [name deleted], I am not sure of his surname.
8.          I added the documents I collected to the bundle of material I found at home. I then sent all of this material to my son by courier.
9.          I have reviewed photograph P1, being the photo of my son, Mr [E] and some other people that was taken at my [business]. I have also reviewed photograph Q1, being the photo of my son with [Mr A].
10.       I have spoken to my son and he said to me that I provided him with P1 and Q1 as part of the bundle of material referred to at paragraph 8. I have no reason to doubt that I provided my son with P1 and Q1, but I cannot specifically recall sending these actual photos to him.
11.       I also cannot recall whether Q1 was a photo I located at the house or whether it was provided to me by [Mr A]’s staff or one of my son’s friends. What I can say is that I did not manipulate, nor did I direct anyone to manipulate, Q1.
12.       It was only after speaking to my son following his hearing late last year that I became aware that one of the photographs may have been manipulated.
13.       I understand that a person who intentionally makes a false or misleading statement in connexion with an application for a visa or a further visa permitting a non-citizen to remain in Australia may be guilty of a criminal offence.
14.       All of this information I have provided in this statement is true and correct to the best of my knowledge.
Again, it is attested here that [the applicant] received Q1 from his father, which again contradicts [the applicant]’s claim through his advisor at the first hearing to the effect that he received the photograph from “a friend”.
What is apparent from the evidence above is that whereas the provenance of P1 and Q1 intersect in the hands of [the applicant] and/or his father, P1 and the base image that borrowed content from P1 to become Q1 are in disparate hands before that. There was no satisfactory explanation thus far for how the Town Hall portrait could have come to incorporate material from P1 prior to arriving in [the applicant]’s family home.
The second Tribunal hearing
I asked [the applicant] to tell me when he first discussed the issue of Q1 with his father. He said he did not raise the issue until after receiving the s.424A letter.
I observed that according to his father’s statement it was not ruled out that the doctored Q1 had been produced by or passed through someone in Mr [A]’s office. In response, [the applicant] said he did not know anything about this at all. I put to him that if Mr [A] or anyone in his office had been party to the fabrication of the image in Q1 this might throw into question the reliability of any information about his case that comes from Mr [A] or his office. In reply, [the applicant] said he did not know.
I put to [the applicant] that the evidence of forgery was very strong. I put to him that there are at least two logical possibilities: one, that he commissioned the fake image that is Q1; two, that someone did it without his knowledge to help his protection visa application. In reply, [the applicant] said he did not know who doctored the image. He said it was not necessary for him to forge such a photograph or tell a lie in order to strengthen his case for a protection visa. I put to [the applicant] that I was prepared to entertain whether someone had somehow included this photograph in order to harm his case, since it did have the potential effect of bringing into question his reliability, the problem here being that there was no other evidence to help in suggesting that anyone wanted to harm his case. In the circumstances, I did not proceed to entertain this possibility.
I asked [the applicant] what Mr [A] is doing lately and he said he has been campaigning to re-enter Parliament as an MP.
I asked [the applicant] what his father is doing lately, and he said he is looking after the [business] and participating occasionally in politics. I asked how his father finds time to do both and he said that his family has appointed a [business] manager. I asked him how long the [business] manager had been appointed and he said, “From the time the [business] opened.” I asked why he needed to work such late nights whilst being a student, community leader and MP’s [volunteer] that he was in his [business] doing [task] after 2:00am the night [Mr C] was killed. In reply, he said the [business] is a “24/7” operation with his father and himself looking after accounts.
I asked [the applicant] if he could draw my attention to any material supporting his claim to the effect that he and [Mr C] were close socio-political associates. In reply, he said he did not know if he has any photographs. He said his father had sent everything. He suggested that he and [Mr C] had known each other since attending school together. I asked him if there were any other reports about the killing of [Mr C] in addition to the [News Source 1] article he had submitted. In reply, he said that report was the last of which he had any knowledge. He said he was not aware of any others because he had stayed home after the killing and then come to Australia.
I asked [the applicant] if he had any other relevant information to provide and he said that he has been to [Country 2] and Europe. He said he had sworn on the Koran to tell the truth. He said he had no intention to tell a lie or falsify evidence. He said he misses his family. He said he was sorry about Q1 turning up in his evidence and really did not know anything about it.
I asked [the applicant]’s advisor if he had any closing comments. The advisor asked for a further two weeks to see if he could obtain and provide evidence supporting [the applicant]’s claims to the effect that he was acquainted with the late Mr [C].
Post-hearing submission
On 15 March 2019, [the applicant] submitted through his advisor a copy of an undated letter in English from Mr [A], the second letter written by this witness in support of the present application. Mr [A] states that he knows [the applicant] through his father, who he counts as a friend. He states that [the applicant] “was very involved in community work in [District 1], such as [deleted] campaigns”. He says [the applicant] “also assisted Muslims attacked by members of the Bodu Bala Sena” although he did not go into any detail as to what this means. He asserts that [the applicant] used to organise meetings to promote the electoral interests of the UNP and was by dint of this well-known to the community.
Mr [A] says that because he was impressed by [the applicant]’s commitment to community work and politics, he took him on as [a volunteer] and gave him the title of “[Job title 1]”, consistent with the designation on [the applicant]’s parliamentary ID card. However, Mr [A] proceeds to give a description of [the applicant]’s role and duties that diverges from the description he gave in his previous letter. He previously referred to [the applicant] as his [Job Title 2] in [District 1], as [the applicant] himself earlier claimed to have been, even though it seems incongruous for the then Member for [Electorate 1] (in the country’s [specified region]) to have, let alone need [Job Title 2] covering districts in Colombo. Now, Mr [A] described [the applicant] as being responsible (albeit only [part-time], going by [the applicant]’s own oral evidence) for managing correspondence from constituents. He no longer referred to [the applicant] having been his co-ordinator for anything. He said [the applicant] was an assistant to his wife, who was responsible, he said, for managing his schedule of meetings and campaign events. He said that, as [a volunteer], [the applicant] was being trained with a view to becoming a [Job title 1], such as he was already called, arguably precipitately, on his parliamentary ID card.

Mr [A]’s letter of 9 April 2015 made no reference at all to [the applicant] having seen Mr [C] being chased into the mosque where he was murdered. The first letter did not mention [the applicant] being acquainted with the victim in that killing. As noted, it did mention [the applicant] being present when Mr [A]’s car and office were damaged by vandals. However, in this second letter, Mr [A] did refer to the “early 2015” killing of [the applicant]’s “friend and fellow [worker], [Mr C]”. Mr [A] was evidently not an eyewitness to this and he does not say when [the applicant] or his family or whoever it may have been informed him of the alleged episode. He goes on to say that [the applicant] then quit his office. He adds that he has heard that [the applicant] received numerous death threats via his telephone. Mr [A] does not suggest how he came to be aware that [the applicant] and [Mr C] were finds and fellow [workers].
Mr [A] says that [the applicant] used to attend political meetings with him. He claims to have seen a photograph that depicts [the applicant] and himself in the company of political figures at a meeting in “September 2014” at a Town Hall. He appears to be referring directly to photograph Q1 because he acknowledges that the authenticity of the photograph he is discussing is contentious. He does not say how or when he came to see this photograph. He does not express a view as to the authenticity of the photograph. However, he asserts that [the applicant] accompanied him to the Town Hall gathering.
Mr [A] claims he has faced many attempts to harm him. He claims that his staff work for him at risk of being harmed. He claims that some staff have quit for fear of being harmed for working with him. He claims he had two bodyguards assigned to him when he was an MP and assigned two more after the vandalising of his office and car. He asserts that [the applicant] will not be able to avail himself of such protection if he returns to Sri Lanka, although he suggests that the risk of [the applicant] being harmed for reasons of having been his [volunteer] will have decreased over the years since he was [a volunteer]. Reading this I recall, [the applicant] having said that his public role as a [leader] inside and outside of the mosque was a contributing factor in the risk of harm he claims to face.
Mr [A] claims that [the applicant] cannot relocate outside of [District 1] or Colombo because violence against Muslims has continued to be a problem throughout Sri Lanka. He also indicates a view to the effect that [the applicant] would have to abandon his political activities in order to avoid harm in places of relocation.
Mr [A] finally offers to fly to Australia to speak to Australian authorities in support of [the applicant]’s protection visa application.
[The applicant] also submitted a video of Mr [A] reading aloud his recent letter. The video was first submitted on a USB stick and again, on 25 March 2019, on a CD-Rom, covered by a letter from [the applicant]’s advisor saying:
Although an apparently altered photograph has been provided to the Tribunal in support of the applicant’s claim to have worked for Mr [A], the relevance of this photograph must be considered in the context of the evidence [from Mr [A]] which corroborates the applicant’s claim in this regard.
Apart from Mr [A]’s relatively recent reference to [Mr C] having been [the applicant]’s friend and fellow [worker], [the applicant] did not submit any material, let alone contemporaneous material, going to his claimed acquaintance with [Mr C].
Independent country information
I have had regard to information, relevant to the claim about the police being insufficiently effective and the judicial system being sufficiently impartial to prevent the BBS from behaving in Sri Lanka with impunity.
I have had regard to independent information about Sri Lankan authorities taking action against suspected violent BBS activists, with “as many as 25 Buddhist monks … in jail for committing some hate crime or the other …”[6]
[6] “Sinhalese monks unleash a new brand of nationalism in Sri Lanka,” The Telegraph (India), 25 November 2018,
In 2017, the Sri Lankan authorities were investigating several incidents of arson attacks on Muslim homes and other properties, and succeeding in arresting several BBS members in connection with arson and other hate crimes:
Sri Lankan police have arrested a key figure from an extremist Buddhist organisation blamed for a series of hate crimes against Muslims that has drawn international censure.
The 32-year-old man from the radical Bodu Bala Sena (BBS), or Buddhist Force, is the first suspect to be arrested in connection with arson attacks against Muslims that have stoked religious tensions.
Police spokesman Priyantha Jayakody said investigations were continuing into 16 “major incidents” of arson since April that hit Muslim homes, businesses, mosques and a cemetery.
“We are taking a tough stand against such crimes,” he told reporters.
The man in custody was directly linked to at least four arson attacks in a Colombo suburb, police said. The unidentified individual had been remanded in custody pending further investigations.
Police were criticised for failing to bring the radical Buddhist group to heel by capturing its fugitive ringleader Galagodaatte Gnanasara, as the minority Muslim community endured attacks with stones and petrol bombs.
Jayakody said the detained suspect is a close associate of Gnanasara, an extremist monk who has gone underground since late May when police ordered he turn himself in for questioning. Four specialist teams were hunting the BBS mastermind, he added.
In a video message released Sunday, a BBS spokesman denied the group was behind the anti-Muslim attacks but accused the government of allowing Islamic extremism to flourish in the Buddhist-majority nation.
“Within a decade or two, Buddhism will be under serious threat in Sri Lanka,” spokesman Dilanthe Withanage said.
“If we want to resort to extremists, violence or terrorism, we have the power and the strength to do it. But we will never resort to such things.”
Withanage did not discus [sic] the whereabouts of Gnanasara, who went into hiding after alleging there was a threat to his life.
The BBS was accused of instigating religious riots in mid-2014 that left four people dead, but it escaped prosecution under the then-strongman president Mahinda Rajapakse.
Rajapakse’s brother Gotabhaya, a former defence secretary, was said to be close to the group.
The latest failure to arrest Gnanasara and stop a renewed outbreak of religious violence has seen the European Union and foreign envoys urge Sri Lanka to take action.
The European Union delegation chief in Colombo, Tung-Lai Margue, has said it was crucial there was “no impunity for hate crimes” and that the perpetrators are swiftly brought to justice.[7]
[7] “Sri Lanka makes first arrest over hate crimes against Muslims,” Hindustan Times, 11 June 2017,
Included in this class of persons arrested by Sri Lankan authorities in recent years is the BBS’s secretary-general, who was jailed in June 2018 for six years for threatening the Muslim wife of a missing Muslim journalist. Arrests and convictions like this and others discussed in this section appear to indicate that the authorities in Sri Lanka have not been ineffective or partial in dealing with the BBS.[8]
[8] “Sri Lanka jails extremist Buddhist monk for six months over threats to woman,” Reuters, 14 June 2018,
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[9] 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.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220.
[10] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[11] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[12]
[11] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[12] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is a Tamil Muslim UNP supporter from [District 1] in Colombo, Western Province, Sri Lanka. I accept that his father is a politically-connected Muslim businessman who owns and runs a [business] on [Road], in [District 1], Colombo, across the road from the [District 1] mosque. I accept that [the applicant]’s father has provided assistance and service to the UNP and in particular to the Muslim politicians named and described in this protection visa application. In particular, I accept that Mr [A] is a family friend who engaged [the applicant] for several months as [a volunteer] on a [part-time] basis.
I accept on the basis of the letter at f.95 of the DHA file that [the applicant] was an active member of [Organisation 1]. None of the material supporting [the applicant]’s claimed association with this body suggests he was one of its leaders, and so I find that he was not. I accept that [the applicant] was known in his community for his sporting activity and his social engagement. I accept that he helped those in charge of his local mosque in [District 1] with activities to help [in a certain area] and Muslim families affected by racial-religious violence. However, given what I consider to be exaggerations and manipulation of evidence in this case, I do not accept that [the applicant], though a participant in the mosque’s social activities and services, was ever a leader.
I accept that [the applicant] worked without salary [part-time] as [a volunteer] in the Colombo (parliamentary) office of Mr [A] MP, the local member at the time for [Electorate 1] in Sri Lanka’s [specified region]. I accept that he was placed in Mr [A]’s office as [a volunteer] thanks to the friendly relationship between his father and the MP. As to [the applicant]’s [volunteer] role, the evidence is somewhat contradictory. His ID card calls him “[Job title 1]” but that title conflicts with [the applicant]’s evidence about Mr [A]’s real [Job title 1] having been his wife, who had six staff assisting her as well as him, [part-time], working in the office as [a volunteer]. Whereas Mr [A] initially called him “my personal staff and my coordinator for [District 1] area in Colombo for [responsibility]”, he later changed his evidence, saying that [the applicant] had merely been responsible for managing correspondence and helping his wife to manage his appointments, neither of which tasks appears to involve running the MP’s [responsibility] activities or function in Colombo. In addition to this information being somewhat inconsistent, Mr [A]’s initial description of [the applicant]’s role in his Colombo office, which was similar to [the applicant]’s own initial description of his responsibilities, strikes me as being somewhat illogical: an MP for the far-off [Electorate 1] would not need to have a [Job title 2] in Colombo; that would be the concern of local MPs in and close to Colombo. On the evidence before me, I find that [the applicant], with the help of some inconsistent evidence from Mr [A], has exaggerated the substance and importance of his role in the latter’s Colombo office. He was evidently there in the office only [part-time] while [studying]. [Number] days is logically a very small part of an MP’s week. I give very little weight to [the applicant] having been called a “Personal Staff of Member of Parliament” and “[Job title 1]” on his Parliamentary Affairs ID card. I take these to be fairly generic near-fit descriptions agreed between Mr [A]’s office and the authority issuing the ID card, and I do not accept that it means that [the applicant] was anything close to being the [Job title 1] the label implies.
Evidence about [the applicant]’s having witnessed the vandalising of Mr [A]’s office and car is inconsistent. [The applicant]'s father has said the vandalising was done to Mr [A]’s residence while [the applicant] was visiting. This version of events is opposed by Mr [A], who says [the applicant] saw his car vandalised, and [the applicant] who claims he was in Mr [A]’s office when it was vandalised along with Mr [A]’s car. Media reports submitted in this case only refer to an attack on Mr [A]’s car. I accept that Mr [A]’s car was vandalised, and I accept the argument in some of the evidence that the damage was done by UFPA supporters angered by Mr [A]’s pre-election defection to the UNP; the timing of the attack supports that. Looking at the evidence on the whole, I find that suggestions by [the applicant] that he was in the office when it too was attacked are another exaggeration. He does not appear to have instructed his lawyer Mr [B] that this was the case; I find on the evidence before me that he did not because it was not true. This is an appropriate point at which to note that I do not accept o the evidence before me that the attack on Mr [A]’s car was perpetrated by the BBS.
I am confident that [the applicant] was party to the fabrication that went into the production of photograph Q1. He has repeatedly asked why he would bother to do something so disingenuous when he was genuinely [volunteering for] Mr [A] and while there is so much evidence of a close social and political link between his father and the latter. I take all this as a comment. I nevertheless conclude on the evidence that [the applicant], probably with help from his family at home in his house in [District 1], is complicit in the fabrication. As noted, the evidence of [the applicant] and his father, taken together, argues that the first time P1 (which contains material cut and pasted into Q1) and Q1 itself came, or were found, together was in the [family] home. However, Q1, as much discussed, contains material from P1, which [the applicant] says came to him in January 2015, a week after it was taken, via the mosque or [Organisation 1]. Q1 itself is said to have been received separately, possibly, [the applicant’s father] says, from Mr [A]’s office or from one of [the applicant]’s friends. But from what we can see, Q1 arrived in the family’s possession already containing the material from P1, which had come by a different path from the photographer who took it into [the applicant]’s hands. There could no doubt be posited some potential, though complicated, explanations as to how the base image in Q1 could have been taken aside at some stage (by someone who failed to tell the applicant’s family what help he or she was providing) and then digitally enhanced with material from P1 and then somehow at some stage placed in the family’s possession. I repeat this is not only a complex speculation as to the course of events but also arguably a very convoluted one, and it seems to involve nobody telling anyone else why one is going to all the trouble of doctoring the image that became Q1. I do not believe that anything like this happened without the knowledge of [the applicant] who I have found to have exaggerated the substance and significance of his role in Mr [A]’s office. I believe he was complicit in the fabrication that went into the creation of Q1. In coming to this finding I give some weight to [the applicant]’s attempt to deny the obvious: I showed P1 and Q1 to him and pointed out the evidence of fabrication and he said this was just a matter of his always putting on the same countenance in portraits. I also give weight to his having said through his advisor at the first hearing that he was merely the passive recipient of the photograph from a friend and then later having said in writing that he was merely the passive recipient of the same from his father; this evidence was inconsistent. I give no weight to [the applicant’s father]’s explanation for the photographs, which relies to a great extent on innocent vagaries of memory. I note he claims to reside in the one place where the two photographs are said to have been placed together. It is therefore hard to rule out that he was directly involved in the deception.
I find that [the applicant] has been inconsistent and unreliable about facts that are significant, rather than minor or peripheral, to his case for a protection visa. I find that he has exaggerated his role as in socio-political activism and in programs run by his local mosque.
That said, I am prepared to accept, albeit with some difficulty, that [the applicant] attended the Town Hall gathering in September 2014, in his capacity as [a volunteer] and sitting, as he said, apart from its participants. However, I do not give weight to his having attended that meeting as one politician’s -- Mr [A]’s – [volunteer].
I accept that in the very early morning of [date] January 2015, a young Muslim man called [Mr C] (or [name], etc.) was murdered by two men respectively wielding a [weapon] and a knife and that the two killers were part of a slightly larger group. Seeing that the murder took place in the corridor of a mosque, into which the victim appears to have been running for safety, it is hard to dismiss that his status as a Muslim was a factor in his murder. That said, it is not unreasonable to consider that his status as [deleted] might also have been a factor: [the applicant] claimed at one point that his killers appeared to belong to an underworld group (that might have been connected to BBS somehow); at another point he said the gang used to hang around the local night market making trouble for vendors and shoppers. Independent information about Mr [C] and his killers appears to be extremely scarce at this stage: [the applicant] and his first witnesses did not even mention him by name in early evidence, apparently until the time when the post-mortem papers were obtained and produced in evidence.

Given the evidence of forgery in this case and given DFAT’s reporting of the ease with which seemingly official documents can be doctored and fabricated, I have some reason to be sceptical with regard to evidence in this matter that appears in no more original form than photocopy. However, I accept that the copied post-mortem report on file is a genuine copy of the genuine report as to the cause of Mr [C]’s death. I infer that [the applicant] engaged his father or his lawyer Mr [B] or both in the process of utilising their social and professional contacts for the release of the report and also in making an iPhone video of the CCTV footage of the murder which I also accept as genuine. I infer this because [the applicant] has claimed and also shown in photographs that his father’s network of political and administrative friends in and around Colombo is quite high-powered.
[The applicant] has given somewhat inconsistent evidence about what happened the night [Mr C] was killed. He has been inconsistent in his description of the group on the street who he described as having been defending and warning him. He has also been inconsistent as to how and when he came to believe or know that the hostile gang was itself a group of BBS members. He has sought to explain some of these inconsistencies by way of saying that he made his first statement unassisted. Relevant to this assertion, however, I note that, whereas [the applicant] relies on an interpreter, all his statements have been in English, so all of them have evidently involved a level of assistance. I do not accept that the inconsistencies in [the applicant]’s description of the night Mr [C] was killed are due to circumstances outside of his control.
I provided [the applicant] with additional time to produce evidence of his association with [Mr C] in the associations he claimed to lead at the mosque and elsewhere. In that time, [the applicant] submitted the statement from Mr [A] referred to “ [the applicant]’s friend and fellow [worker], [Mr C],” having been set upon and murdered in early 2015. On the evidence before me, I give Mr [A]’s reference to the friendship little to no weight, as no evidence suggests how Mr [A] could have directly witnessed the link between the two youths. In fact, in the paragraph where [Mr C] is named Mr [A] indicates that the information he is sharing about [the applicant] and his experiences has been provided to him by another party.
I find it plausible, though, that [the applicant] and Mr [C] were acquainted, since I accept that they were both local Muslim youths who attended the same local mosque. However, given the weight of inconsistent, exaggerated, fabricated and otherwise unreliable evidence before me in this case, I do not accept that on [date] January 2015 [the applicant] was the intended target of the group that killed Mr [C]. For similar reasons, I do not accept that the BBS was involved. In the alternative, I have found that I am not satisfied that [the applicant] was the killers’ initially intended target the night Mr [C] was killed. I am not satisfied on the evidence before me that anyone but [Mr C] was the target of the murderers on [date] January 2015.
I am not satisfied on the evidence before me that [the applicant] or anyone in his family is or has been a target of the BBS or affiliated, violent, pro-Buddhist or anti-Muslim activists, notwithstanding that they are Muslims who support the UNP. Due to factual inconsistencies, I am not satisfied that the evidence of [the applicant] or others relating to threatening telephone calls is factual. I consider the June 2015 report to police to be unreliable on a number of grounds, due to inaccuracy about the location of the vandalism to Mr [A]’s property, the erroneous suggestion that [the applicant] was in Mr [A]’s residence when it occurred, and the fact that it omits to mention purportedly the most significant event in which [Mr C]’s killers had first sought [the applicant] on [date] January 2015. I find that, like photograph Q1, this deposition to the police was contrived to help [the applicant] with the present application. I am all the more confident that claims about the threatening telephone calls, including those in the report to police, are not reliable because they are not consistent with the behaviour of the group described as perpetrating them: a group that has summarily killed Muslims and burned their houses across Sri Lanka. The source(s) of the threats in this case have, rather, let those threats go unfulfilled for over four years. In the claimed circumstances, I consider this to be implausible, even after considering the general proposition that someone might seek to keep a victim in a prolonged state of insecurity by repeating a thitherto unfulfilled threat over a long period.
On [the applicant]’s performance as a witness in this matter, I do not accept that the police were dismissive of him in the claimed circumstances and manner described. Given the independent media evidence of the police having opened an investigation on [date] January 2015, wherever it ultimately went or did not ultimately go, I consider it implausible that they ignored [the applicant] at that time in the manner described.
Meanwhile, [the applicant]’s suggestion that it would be unusual for the BBS to attack a Muslim family home in a predominantly Muslim neighbourhood is contradicted by independent country information and, in the circumstances, I find the independent information reliable and [the applicant]’s claim not so. The fact that neither [the applicant]’s family, nor their home nor their business has been subjected to violent attack, let alone after the alleged frustration of not catching him on [date] January 2015, makes it all the harder for me to accept that he or anyone in his family has been a target of the BBS or like groups.
In the alternative, I am not satisfied that [the applicant] is unable to avail himself of state protection. Independent country information satisfies me that the Sri Lankan government and its various branches, including the police, have begun a dedicated campaign to curb the violent and violence-inciting excesses of the BBS and similar groups. I do not accept on the evidence before me that the Sri Lankan authorities refuse, as suggested, to offer assistance and protection to individual citizens, where there is an evident threat of being targeted for serious harm, on the basis of the potential target being merely an individual. In coming to this conclusion, I also give some weight to the high local profile of [the applicant]’s family, its useful social and political connections and its ability to engage support from a wide range of social and administrative sectors.
I am not satisfied that [the applicant] faces a real chance of being persecuted in the reasonably foreseeable future for reasons of being affiliated with Mr [A], either as a family friend, or former [volunteer] or, one day, as a member of his staff. I find that he would be able avail himself of adequate and effective state protection in the hypothetical event of becoming a paid political staffer or politician.
I am not satisfied that [the applicant] faces a real chance of being persecuted in the reasonably foreseeable future for reasons of supporting the UNP, or participating in his mosque’s [initiatives], or affiliating with [Organisation 1] or like bodies. I am not satisfied that he faces a real chance of being persecuted in Sri Lanka in the reasonably foreseeable future for reasons of “political opinion”, actual or imputed, or for reasons of “membership of a particular social group” such as “male youths in Sri Lanka” and/or the social associations with which he claims affiliation.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Sri Lanka in the reasonably foreseeable future for reasons of “religion”.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in the reasonably foreseeable future for reasons of his Tamil “race”.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in the reasonably foreseeable future in Sri Lanka for any reason in s.5J(1)(a) of the Act, separately or cumulatively.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
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.
Accepting that [the applicant] is a citizen of Sri Lanka, I find that Sri Lanka is the “receiving country” in this case. I acknowledge that the harm he identifies in his claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. Since those claims failed due to lack of reliability and a failure to meet the “real chance” test, they can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5458

28 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal