1619088 (Refugee)

1619088 (Refugee) [2020] AATA 2318 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619088
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Simone Burford
DATE:4 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 June 2020 at 4:43pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – member of a particular social group – bisexual man – custody dispute with ex-wife – threats to applicant and family by ex-wife and her family – ex-wife’s family’s political links – no actual harm – credibility – delay in applying for protection – late claims – country information on homosexual and bisexual rights, general security situation and returnees and failed asylum seekers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(b), 5L, 36, 65, 104
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
AUB16 v MIBP [2017] FCCA 2634
FMN17 v MICMSMA [2020] FCA 326
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
MZAEN v MIBP [2016] FCCA 620
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
SZRSN v MIAC [2013] FCA 751
SZSNX v MIBP [2015] FCCA 2271
WAKK v MIMIA [2005] FCAFC 225
WZARI v MIMAC [2013] FCA 788
1510675 (Refugee) [2018] AATA 1735
1605592 (Refugee) [2017] AATA 914
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 dependants.

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 and Border Protection on 24 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 8 November 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in the Act and was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 15 November 2016. He provided a copy of the delegate’s decision with his application for review.
The applicant attended a hearing before the Tribunal on 5 April 2019 to give evidence and make submissions in support of the review application. The applicant did not require the assistance of an interpreter. The applicant was not represented in relation to the review.
The applicant was provided with additional time following the hearing to provide further evidence and submissions. Additional material was received following the hearing and has been considered by the Tribunal in reaching a decision on the application.
Following the hearing, the Tribunal wrote to the applicant to give him an opportunity to comment on changes to the security situation in Sri Lanka following the Easter 2019 terrorist bombings and to provide any information or evidence as to whether his circumstances had changed as a result of those events. The applicant responded on 15 October 2019. His response been considered by the Tribunal in reaching a decision on the application. His response is considered further below.
The issue in the review is whether the applicant has a well-founded fear of persecution in Sri Lanka from the authorities because of his family’s political links, as a homosexual or bisexual man, from his ex-wife’s family, or for any other reason, or whether complementary protection provisions otherwise apply.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their 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 they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] 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.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] 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 Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[4] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The court confirmed that the Tribunal had applied the correct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[5]
[4] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].
[5] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA(2003) 129 FCR 137 at [19] per Cooper J.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[6]
[6] Prasad v MIEA (1985) 6 FCR 155 t 169-70; SZBEL v MIMIA (2006) 228 CLR 152 [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003 at [57] ad [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, I November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The applicant’s obligations to present their case in full before the primary decision maker and not wait until after the decision has been made are particularly relevant. Firstly, the ongoing requirement under s.104 of the Act is for an applicant to ensure that their relevant details are correct and to change any incorrect information at the first reasonable opportunity. Secondly, applicants are required to present all claims and evidence to the primary decision maker unless they have a reasonable explanation for not doing so.
The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant genuinely held a subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.
In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility published in July 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant travelled to Australia on a Sri Lankan passport and the delegate had no concerns with his claimed nationality. The applicant confirmed at the hearing that he was a Sri Lankan national and stated that he was not a citizen of any other country. He provided a copy of his expired Sri Lankan passport to the Tribunal. The Tribunal accepts that the applicant is a national of Sri Lanka and has assessed his protection claims accordingly.
The Tribunal finds that the applicant is a citizen of Sri Lanka, which is also the receiving country for the purpose of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest the applicant has a right to enter and reside in the third country for the purposes of s.36(2)(aa) of the Act.
The applicant’s migration history
According to the delegate’s decision, the applicant arrived in Australia [in] January 2008 on a Student [visa].
He was in Australia from February 2005 to [March] 2005 as the holder of a Business (Short Stay) visa (UC 456). He travelled again to Australia on a Student [visa] arriving [in] January 2008. That visa expired on 15 March 2010. The applicant applied for a further student visa which was refused on 10 June 2010. The Migration Review Tribunal affirmed that decision on 4 April 2010. He requested Ministerial Intervention, which was ‘not considered’ on 24 March 2015. He made a further request for Ministerial Intervention, which was not referred on 14 July 2015. A third request for Ministerial Intervention was commenced and was not referred on 11 September 2015. He applied for the protection visa on 8 November 2015. A further request for Ministerial Intervention was commenced in May 2016 and determined to be inappropriate to consider on 17 May 2016.
The applicant stated that he had travelled to a number of countries other than Australia, including to [one country] when he was at school, to [another country] after he married, on holiday to [a third country] and [a fourth] in 2006-2007, and [a fifth] as a stopover on his way to Australia. He confirmed he was not a citizen of any other country.
Material before the Tribunal
The Tribunal had before it a copy of the delegate’s decision in relation to the application. This was provided to the Tribunal by the applicant with his application for review. The Tribunal also had a copy of the Department’s file relating to the application.
At the Tribunal hearing the applicant provided oral evidence of his concerns about returning to Sri Lanka. The applicant’s testimony in relation to these claims is summarised below.
Before the Tribunal he provided a copy of his passport and additional documents including the following:
·Transcript of proceedings in the Family Court of Australia (the Family Court) from October 2018;
·Photographs of the applicant with two children (identified by him as his children);
·A letter from the Department of Child Protection from March 2020 indicating the investigation against him in relation to a domestic violence incident was unsubstantiated;
·Divorce orders from the Family Court made in December 2015;
·Medical documents relating to the treatment of his children in 2016.
Country information
At the hearing, country information, including the Country Information Report: Sri Lanka, dated 23 May 2018 (2018 Report), was discussed with the applicant. Following the hearing, the Department of Foreign Affairs and Trade (DFAT) issued an updated version of the Country Information Report: Sri Lanka, dated 4 November 2019 (2019 Report). The Tribunal considered the updated report.
The Tribunal notes that the relevant material contained in the 2019 Report was materially the same as the country information report put to the applicant at the hearings. The Tribunal was satisfied that issues arising from country information canvassed in the 2019 Report had been raised with the applicant at the hearing.
The relevant country information is discussed further below.
Background
The applicant is [an age] year old male from Sri Lanka. He told the Tribunal he was a Buddhist of Sinhalese ethnicity.
He came to study in Australia at [an educational institute]. In Sri Lanka he studied at university prior to coming to Australia.
His family remain predominantly in Kandy, central Sri Lanka. His father is deceased. His mother lives in Kandy. He has [siblings and extended family], all living in Kandy.
He married in Sri Lanka in 2002. He has two children from that marriage. At the time of the hearing they were around [ages]. He separated from his wife in 2009 or 2010. They are now divorced and his wife is living in Australia with his two children.
His ex-wife’s family live in Colombo, Sri Lanka. He was living in Colombo prior to moving to Australia.
At the hearing he initially told the Tribunal he does not see his children, but the custody case was ongoing. He said his wife had full custody of the children. When the Tribunal queried the reason she had full custody he explained that ‘she came with sexual allegation’.
When the Tribunal explored the custody arrangement further, the applicant said that in October or November 2018 there was a hearing and his wife had not appeared. He indicated the Judge had asked him to consider his options and he decided to give up the custody fight and ‘heal it’.
He said the allegations had involved claimed sexual offences against the children. He said they had supervised contact arrangements initially and when they moved to an unsupervised contact arrangement his wife stopped him the following week and claimed he had touched the children in inappropriate ways. He said an independent report cleared him and that was accepted by the Family Court but it had taken a year and a half. They had been ordered to counselling but his wife had ignored this and had alienated the children against him. They tried supervised contact orders but the children refused to attend. In those circumstances, the children’s advocate had said he shouldn’t have contact with the children.
He provided documentation to the Tribunal, including a transcript of the hearing which supported this account of the proceedings and indicated that he has now relinquished full custody to his wife and does not have custody proceedings before the Family Court. He indicated he was ‘still thinking of other avenues.’ It was not clear what those avenues were.
He said he did not have a partner in Australia and had not had any serious relationships since his ex-wife. He has no other family members in Australia.
He said prior to losing work rights he was working as [an occupation] and then in [another industry]. At the time of the hearing he said he was not working but was supporting himself though an online [business].
He has not returned to Sri Lanka since coming to Australia but is unsure if his ex-wife and children had ever been back.
Overview of claims
The applicant claims there is a real risk he will face serious or significant harm on return on a number of grounds. In summary, the applicant claims:
·He is separated from his wife and is seeking custody of their children. His former wife and her family are supporters of the UNP, and his wife and her family use the party to threaten and intimidate him.
·He was bisexual in the past, and as a result of his historical sexual preference for same sex partners, his former wife's family are labelling him as gay and are spreading that information to family and friends.
·He fears harm from the UNP as his former wife and her family are supporters and [a number of] uncles are UNP section leaders in Colombo District. He fears he will be persecuted by authorities and charged for his historical same-sex relationships.
The applicant agreed this was a fair and accurate summary of his claims for protection. Although not expressed as claims by the applicant, the Tribunal also considered whether he faces harm on return to Sri Lanka as a returnee from the West and a failed asylum seeker. The Tribunal has also considered his claim to suffer harm as a result of separation from his children and claimed medical problems on return to Sri Lanka.

As noted in the delegate’s decision, the applicant’s written claims state he departed Sri Lanks due to lack of security throughout the country due to the civil war. His application also states he has received threats against his life, and he will not be protected by the authorities. He stated that:
·He came to Australia due to the civil war in Sri Lanka. He was afraid for the safety of his family.
·He was afraid because of his family background he would be targeted, and the police did not assist him.
The applicant was interviewed by the Department on 5 September 2016. The delegate’s decision summarises the claims made by the applicant before the Department as follows:
·The applicant separated from his wife in about October 2009 and attempted to obtain custody of their two children.
·In response to the custody battle, his family in Sri Lanka has been receiving verbal threats from his former wife’s family.
·He will be harmed through imprisonment, harassment, assault or death by his former wife’s family through their political links with the United National Party (UNP) as her family are supporters of the party and [a number of] uncles are UNP section leaders in Colombo District. As the UNP are now in power, the threats have intensified.
·His mother began receiving verbal threats regarding the application in January or February 2015, when UNP came into power, and has continued to receive them up to six or seven months prior to the interview.
·He has not been threatened directly as his former wife and family do not have his contact details.
·The authorities will not protect him as his former wife’s family have political links and the authorities are corrupt.
·His former wife has informed his friends and family that he is gay, which has brought shame onto his own family and resulted in him being ostracised by the majority of his friends in Sri Lanka and from his family support. He indicated he was he sure that has occurred as his friends and family have told him, and his former partners, who were also named, experienced issues in Sri Lanka.
·He is not engaged in the LGBT community in Australia and has attempted to keep his past hidden, including on social media.
·Although he does not consider himself gay, he does consider himself bisexual and he has had relationships with men until 1998. He ceased any same-sex relationships once he began seeing his former wife. He has had two relationships with two different women (the first for two years and the second for less than 12 months) after separating from his wife in Australia. He did not engage with the LGBT community or have any same-sex relationships out of fear of being found out.
·His family has never been harmed in Sri Lanka due to his sexuality or the custody battle. However, he believes his brother has lost work contracts due to the applicant’s former wife’s family contacts and the applicant has been ostracised by the majority of his friends and family (apart from his mother) due to sexual orientation.
·He fears he may also be targeted by the authorities and suffer discrimination by the community due to his bisexuality becoming known, resulting in the loss of any support from friends and family and being charged and imprisoned for his previous same-sex relationships, as homosexuality is illegal in Sri Lanka.
·He cannot relocate to another area of Sri Lanka as his wife’s family will locate him through their political links.
·He fears that he may be killed, harassed, discriminated against or targeted on return to Sri Lanka if he continues with the custody battle; either through his former wife’s family’s UNP links or her and her family informing the community and government of his bisexuality.
In response to information put to the applicant for comment by the delegate, the applicant told the Department:
·He did not make his protection visa application until November 2015 as he wished to exhaust other options first as he wanted to keep his claims for protection a secret, especially regarding his sexuality.
·His protection visa application lacked detail because he wanted to present information at interview and any errors contained in the written claims, such as claiming to experience harm in Sri Lanka and seeking help from the authorities, were due to his misunderstanding the form of the question.
·He did not disclose any of his own protection claims to the Department previously as those matters (prior applications) related to his children and his visa status and not to his protection visa claims.
·He informed the Department previously on 18 August 2015 that he was able to return to Sri Lanka but was not willing to do so due to the welfare of his children and not because of the personal harm he would face because that information was in regards to the Ministerial Intervention request and not his claim for protection.
The Tribunal discussed the delegate’s decision with the applicant. His responses are considered below.
Before the Tribunal, the applicant stated that he left Sri Lanka for Australia alone in 2008. He said he ‘thought I could get things done without going this path’. He said he left his wife and children in Sri Lanka and she pushed her mother, with whom she was living, to sponsor them to come to Australia. He said his wife came on her own visa and is now a citizen.
He said he left Sri Lanka due to his relationship with his wife and past sexual relationships and sexuality problems. He said his wife has been [an occupation] in Sri Lanka. He worried she would go to the media when they separated in 2005 as she had threatened to tell people about his sexuality.
When asked what he feared may happen to him if returned to Sri Lanka, he said he was concerned his ex-wife would ‘destroy’ him. He said he came to Australia to avoid this and he was not going to apply for refugee status as this would expose his issues.
He claimed that politically his wife was strong. He said when she was pregnant her family took her to their house. He said when he went to get her, family members asked him to sit down and they had a conversation with him about a bisexual relationship he had with someone else. He said they threatened him. He said this occurred in [2005]. He said he took his wife home after this and they had another child in [year], then he came to Australia on the student visa. He said he tried again with his wife for the sake of his child.
The Tribunal queried why he didn’t mention this claim earlier and he said he didn’t have good communication during the previous interview. He said the interviewer (the delegate) ‘tried to make me angry, if someone is angry I back off. I felt like he was trying to show me he knew things more than I know.’ As an example, he said the delegate was putting to him that the UNP government came to power during certain dates. From the delegate’s decision, this appears to be a reference to the fact the applicant stated that the UNP came into power in January, however, Sri Lankan Freedom Party (SLFP) President, Maithripala Sirisena, won the presidential election in January 2015, and while he was affiliated with the UNP at the time, the UNP did not become the ruling party until August 2015. Given the association between the SLFP and the UNP at that time, the Tribunal does not place any significance on this distinction.
When asked again about why he didn’t raise his claims for protection earlier and why he was raising new claims now, he said he didn’t know what to do earlier. He said he had made a mistake with his student visa application and then he had applied to the Family Court and he was confused.
Claims relating to harm from the applicant’s ex-wife’s family
The applicant claims he will suffer harm on return to Sri Lanka from his ex-wife’s family, the UNP, with whom they are politically involved, and authorities due to their links with the UNP. The applicant claims he will be targeted by his ex-wife’s family due to the custody dispute with his ex-wife and his bisexuality. As expressed to the Tribunal, this includes that:
·He is at risk of being harmed by his ex-family due to the custody battle and disputes over property.
·His wife’s family have links to the UNP, and he will be targeted by the UNP and authorities as a result of this, including through being charged for historical same-sex relationships.
·His wife’s family threatened him before he left Sri Lanka over those relationships.
When asked about his ex-wife’s links to UNP, the applicant said her uncle was a supporter. He said he didn’t have a position within the UNP but was just a ‘ground level’ supporter. When asked how it was the UNP would harm him he said that due to the family’s UNP connections they would not face any legal action in response to harming him.
When asked why they would want to harm him he said it was because of a property settlement with his wife. He said they had a house in Colombo which was owned by her mother and transferred into both their names as a gift. He said he had no intention of claiming it. When asked why, then, the family would seek to harm him, he said they think she can’t have property in Sri Lanka as she is now an Australian citizen.
When asked whether he had been threatened by his wife’s family, he said they threatened his mother a month prior to the hearing and she couldn’t live in her home anymore. He said she had sold her home and moved but he didn’t know where she was living. When asked what form the threats took, he said they said ‘If you come here, we will get back to you.’ He said the threats were made by phone, ‘a few times, 3 or 4 times a year’, starting ‘from day the Family Court 2010’.
The Tribunal queried why, if they have been making threats for so many years but have never acted on those threats, he would be concerned. He said his sister told him the family can’t continue to take threatening calls. He said that the threats had never been reported to police because no one wanted to ‘make a mess’ or tarnish their image.
The Tribunal queried why, if he has now withdrawn his claims for custody of the children, the threats would continue. The applicant said that now it was because of the house and when he left the property wasn’t worth as much money. He said he didn’t want to sign the house over to his ex-wife because he wants to keep it for his children.
The Tribunal noted that the delegate accepted that the family were supporters of the UNP but did not accept that they have political influence to use the UNP to target the applicant. The delegate also raised concern that he was unable to supply any specific details regarding the threat, such as their frequency and how he could be sure that they would be carried out on his return. The delegate also noted that the issues between the applicant and his ex-wife had been ongoing for over five years by the time the UNP came to power and it was implausible that her family would not threaten the applicant until the political party that they supported came into power. In response, the applicant said he had been trying to figure out the dates, but he was confused.
The delegate also raised a concern that the applicant did not mention any issues he was having with his ex-wife’s family at any time to the Department until his interview on 5 September 2016, and that he had told the Department prior to the interview that he did not wish to return to Sri Lanka for the welfare of his children and not because he was at risk of harm. In response, the applicant said that he didn’t want to expose everything as he knew he was going to go for the interview.
The Tribunal put to the applicant that the delegate’s decision indicated he had not raised a risk of harm on return in his requests for Ministerial Intervention. The applicant stated he didn’t want to reveal what had happened. At the interview, the applicant indicated he was never targeted by police or required police protection. The delegate’s decision records that he told the Department he hadn’t been targeted by his wife’s family when in Sri Lanka, which was not consistent with the claims made before the Tribunal. The delegate accepted that the applicant may have received threats from his ex-wife’s family but did not accept that there was any evidence to support his claim that they would carry out on those threats.
In response the applicant said he didn’t have evidence but queried how anyone could say it is not going to happen. The Tribunal indicated that the fact his wife’s family haven’t done anything to his family may suggest they would not carry out their threats. The applicant stated they were targeting him, not his family. The Tribunal highlighted that the applicant had told the Tribunal they had threatened his family but that no one in his family had been harmed in the years he says they have been making those threats. He confirmed this was the case.
The Tribunal discussed with the applicant country information, including that detailed in the delegate’s decision. The Tribunal noted that it has been reported that the security situation in Sri Lanka as a whole has improved since the change government in 2015, however, corruption and the politicisation of the judicial system still result in biased and unreliable judgements. Further, the change in government had resulted in a reduction of threats and political interference when compared with the previous government.[7] With respect to the applicant’s claims, there was no information in the DFAT country information which was at odds with this assessment, noting that President Sirisena was elected on a platform of good-governance and anticorruption.[8] The applicant said there had been no reduction and the scenario was the same.
[7] Citing ‘Focus Sri Lanka – Lagebild’, State Secretariat for Migration (SEM), Switzerland, 5 July 2016 and ‘Freedom in the world 2016 – Sri Lanka’, Freedom House, 20 June 2018. With respect to the applicant’s claims there was no information in the last two DFAT Country Information reports which was at odds with this assessment.
[8] DFAT Country Information Report Sri Lanka, 23 May 2018.
The applicant said he hadn’t lived in Sri Lanka for 10 years but he reads websites and newspapers. He referred to a recent incident involving the shooting of a film in Kandy and the fact there had been an issue about the film being gay.
The Tribunal referred to country information that arbitrary arrest and detention have also decreased and are focused on former combatants rather than someone of the applicant’s profile as a Sinhalese male who has never been involved in conflict or resided in the conflict area.[9] The applicant said that there are ‘other things happening behind it.’
[9] Citing ‘Sri Lanka – Country Report on Human Rights Practices 2015’, US Department of State, 13 April 2016.
The Tribunal notes that following the hearing Gotabaya Rajapaksa, former Minister and brother of Former President Mahinda Rajapaksa, was elected President in November 2019 and shortly thereafter appointed his brother, Mahinda as Prime Minister following the resignation of Prime Minister Wickremasinghe.[10] Rajapaksa, the candidate for the Sri Lanka Podjana Permuna (SLPP), defeated the UNP candidate, Sajith Premadasa. While this arguably lessen the ability of the UNP to exercise power the Tribunal does not place significant weight on this, as regardless of the change in government, given the general volativity of Sri Lankan politics the Tribunal accepts that UNP will remain an active player in Sri Lankan politics for the foreseeable future. In this regard the Tribunal notes that parliamentary elections are due to be held in June 2020. In any event, given the findings by the Tribunal on the risk to the applicant from the UNP (detailed further below) the Tribunal does not regard the change in government to be material to the outcome of the review.
[10] ‘Gotabaya elected President of Sri Lanka’, The Guardian, 17 November 2019; ‘Sri Lanka's new president picks brother Mahinda Rajapaksa as PM’ Al Jezerra, 20 November 2019 >
The Tribunal accepts, on the basis that it is plausible, that the applicant may have been in conflict with his ex-wife’s family regarding his custody dispute and property settlements. However, the Tribunal has significant concerns regarding his claims to fear harm on return to Sri Lanka on that basis, particularly due to links his ex-wife’s family may have with the UNP.
The Tribunal accepts the applicant’s ex-wife family may be members of the UNP. However, based on the applicant’s own evidence, that involvement is only at the level of ‘ground level support’. The Tribunal does not accept, on the evidence and available country information, that it is plausible that ground level supporters of the UNP would have sufficient political influence with the UNP to enable them to use the UNP or the authorities under government control to threaten or harm the applicant on return to Sri Lanka.
The Tribunal does not accept that the applicant was threatened by his ex-wife’s family when in Sri Lanka. These claims were not raised before the delegate and the Tribunal did not accept the applicant’s explanation that he did not feel comfortable raising them at the interview. He was comfortable raising his claims, including of past bisexual conduct, and on that basis the Tribunal was not satisfied there was any explanation why the claimed incident in 2005 would not have been raised. On that basis, the Tribunal does not accept that claim is credible. The Tribunal does not accept the applicant’s explanation for not having raised the claims in his application or before or during his interview with the Department. The Tribunal draws the inference that the applicant has added these claims to strengthen his claims for protection.
In any event, the applicant’s claim was that his wife’s family spoke to him about same-sex extra marital relationships, following which he remained with his wife and had a further child. He said he did so in the interests of his child. The Tribunal does not consider this is consistent with a claim the applicant felt threatened by his wife’s family, but rather that he felt a responsibility to his own family.
Further, the Tribunal has concerns regarding the applicant’s late claim that the family are now threatening him in relation to a property held jointly in his and his ex-wife’s name. The applicant suggested he had no interest in the property but did not wish to sign over his interest to protect his children’s rights. Given the applicant and his wife separated in 2009 and have been in custody dispute since 2010, the Tribunal regards that is implausible that this issue would only have arisen after the delegate’s decision. The Tribunal draws the inference that the claim was raised as the custody issues on which the claimed harm were largely based are now settled. The Tribunal does not regard this claim as credible. In any event, the Tribunal considers that any dispute over property in which the applicant’s only claimed interest is to secure his children’s inheritance could be resolved with his ex-wife’s family in the transfer of any property interest should a settlement be pursued on his return to Sri Lanka.
The Tribunal had concerns regarding the applicant’s claims the family had moved due to threats received from his ex-wife’s family. On his evidence to the Department and Tribunal, his mother had been receiving threats from his ex-wife from 2010 onwards. The applicant was unable to explain why in such circumstances his mother would have moved only in around 2019. Further, the applicant testified that at no point had any member of his family been harmed or had any of the threats made been realised or acted upon. This suggests she moved for reasons other than telephone threats from the applicant’s ex-wife’s family. The Tribunal does not regard it as plausible that his mother moved due to the claimed threats and does not accept that she did.

The Tribunal notes that taking the applicant’s claims regarding the threats made by his wife’s family at their highest he claims to have suffered threats via telephone over a period of around 9 years. At no point has he or any of his family members been physically harmed or suffered an identified loss as a result of these threats, other than by the applicant’s ex-wife telling his family and some friends that he is gay or bisexual. That claim is considered further below. Further, the applicant does not claim that he or any member of his family has been targeted by Sri Lankan authorities due to his connection to his ex-wife’s family, because he is bisexual or on any other basis. The Tribunal does not accept on the evidence that they would attempt to do so in the future, particularly given the applicant no longer has a custody claim in relation to the children.
The Tribunal finds that the fears of persecution from his ex-wife’s family, the UNP or authorities are not genuinely held by the applicant. Further, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm on return to Sri Lanka due to a custody or property dispute with his ex-wife or family, their links to the UNP or his prior history of same sex relationships.
Claims relating to bisexuality
Linked to his claims to fear harm from his ex-wife’s family, the applicant also claims to fear harm due to being a bisexual and due to having engaged in same sex relationships in the past in Sri Lanka. In summary, the applicant claims:
·The applicant is bisexual and had several bisexual relationships prior to marrying his wife in 1998.
·His wife’s family threatened him in relation to a prior bisexual relationship while he was in Sri Lanka.
·His wife has told friends and family that he is bisexual.
·If he returns to Sri Lanka, his ex-wife and her family will publicise that he is bisexual, and the authorities will arrest him because of his prior same sex relationships, which are illegal in Sri Lanka.
The Tribunal accepts that a person who is bisexual is a member of a particular social group as defined by s.5L of the Act.
The applicant told the Tribunal he realised he was bisexual in high school in Sri Lanka. He had a relationship at school with a fellow [student], commencing when he was [age]. He had another relationship when he was at [educational institute] in Sri Lanka with [another man]. He said this wasn’t a partner because it was ‘hidden under the carpet’. He said [this man] is in the UK and that he went to see him in the UK. The Tribunal notes that he said he had travelled to the UK in 2005 to 2006.
He said the last same sex relationship he had was in 2005 to 2006. He said he had 2 relationships from 2005 who he met through ‘some gay society club’ in Colombo.
The Tribunal asked if his (then) wife knew about the encounters and he said he explained everything about his life after he got married in 2002. He said he told her about the encounters when they happened. He said he never had relationships after he got married.
He was asked if he had had relationships in Australia and he indicated he had said he didn’t have any relationships in the last 3 to 4 years but he had 2 relationships with women in Australia, one around 2010 when he was working for a [business] and another causal relationship lasting about 2 years. He said he had one or two casual same sex encounters with men he had met at work around 2011. He didn’t know their names. He said he didn’t want his ex-wife to have anything to say against him in his court case.
The applicant said he was worried that his ex-wife’s family would try to destroy him. He said they had already told his family that he was gay and ‘he must have Aids’. He said they first told his family in the phone calls between 2010 and 2018-2019. He said his family first asked him in 2010 if it was true that he was gay. He said he still talks to his family but he doesn’t have a good relationship with them. He said he doesn’t talk regularly to his family and as soon as his father passed away, he left. He was concerned that his friends would know and that this would ‘mentally traumatise me, and I will not have a good image. I will not be able to socialise with my friends or anything. I will be isolated’.
The Tribunal queried why he had not mentioned to the Department having had same sex encounters in Australia, and he said he didn’t ‘expose my sexual relationship to her because I didn’t want her to have this evidence. If I say this thing to family courts.’
The Tribunal discussed with the applicant country information canvassed in the delegate’s decision and more recent information from the Department of Foreign Affairs and Trade and other sources.[11] Consensual same sex criminal activity is criminalised in Sri Lanka, however, sources report that cases are rarely prosecuted.[12]
[11] DFAT Country Information Report Sri Lanka, 23 May 2018 (DFAT 2018 Report); ‘Country Policy and Information Note Sri Lanka: Sexual orientation and gender identity and expression’, UK Home Office, October 2018 (Version 3); ‘Sri Lanka – Country Report on Human Rights Practices’, US Department of State, 13 April 2016. See also DFAT Country Information Report Sri Lanka, 4 November 2019 (DFAT 2019 Report).
[12] ‘Country Policy and Information Note Sri Lanka: Sexual orientation and gender identity and expression’, UK Home Office, October 2018 (Version 3), para 2.4.7.
The Sri Lankan Constitution does not recognise the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people. LGBTI advocates have recommended, as part of the constitutional reform process, inclusion of gender identity and sexual orientation as a fundamental right in the Constitution’s equality clause (Article 12.2). [13]
[13] DFAT 2019 Report, para 3.100; see also DFAT 2018 Report, para 3.146.
DFAT reports that:[14]
Under Section 365 of the Penal Code, ‘carnal intercourse against the order of nature’ or ‘acts of gross indecency’ can attract sentences of up to 10 years’ imprisonment and a fine. Police have arrested individuals under this section, but no prosecutions have occurred since independence in 1948. Police allegedly use Section 399 of the Penal Code or the Vagrants Ordinance to threaten, harass, extort money and sex, arrest and detain LGBTI individuals. Reporting of police abuse against LGBTI individuals is low. Many reported cases occur in Colombo. Transgender individuals, sex workers and the poor are most vulnerable.
[14] DFAT 2018 Report, para 3.1010; DFAT 2019 Report, para 3.158.
Although prosecutions regarding sexual orientation are rare, LGBTI members are harassed, discriminated against, and assaulted with impunity by the authorities. LGBTI persons are also abused by family members to conform to gender norms and are faced with the extreme views held by politicians, religious persons and the community itself. However, Colombo has hosted LGBT celebrations over the past 10 years and there is optimism that conditions may improve under the new government.[15]
[15] ‘Sri Lanka – country report on human rights practices 2015’, US Department of State, 13 April 2016; ‘Still a crime to be gay in Sri Lanka’, Daily Extract, 27 October 2015.
DFAT notes:[16]
No legislation protects LGBTI individuals from discrimination or hate crimes. Individuals routinely experience discrimination in employment, housing and health care due to real or perceived sexual orientation or gender identity. Transgender individuals, who tend to be more visibly identifiable, are more likely to experience discrimination and difficulty gaining access to basic services that require identity documents. Transgender individuals are unable to self-identify and, since August 2016, have been required to obtain a ‘Gender Recognition Certificate’ from a medical professional to amend government issued identity documents. Legal recognition of a different gender identity requires both hormone treatment and surgery, which is expensive, unavailable outside large cities such as Colombo and Kandy, and not desired by some individuals. Local sources have identified the Kalubowila government hospital near Colombo as a transgender-friendly hospital; it conducted the first sex reassignment surgery in Sri Lanka in 2017.
[16] DFAT 2018 Report, para 3.102; see also DFAT 2019 Report, para 3.158-9.
The UK Home Offices notes:[17]
In general, the level of societal discrimination and abuse faced by LGBTI persons in Sri Lanka is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm. However, decision makers must consider whether there are particular factors relevant to the person which might make the treatment serious by its nature or repetition.
Each case must however be considered on its facts with the onus on the person to demonstrate that they would be at real risk on return.
[17] ‘Country Policy and Information Note Sri Lanka: Sexual orientation and gender identity and expression’, UK Home Office, October 2018 (Version 3), paras 2.4.19-20.
In similar terms, DFAT assesses that:[18]
The vast majority of Sri Lankans holds conservative views about sexual orientation and gender identity, and many prioritise collective values over individual rights. DFAT assesses that lesbian, gay, bisexual and intersex individuals in Sri Lanka face a moderate risk of official discrimination and a moderate level of societal discrimination on a day-to-day basis. The level and frequency of discrimination differs, depending on the socio-economic status, religion and geographic location of the individual. DFAT further assesses that transgender individuals face a high level of official and societal discrimination compared to other members of the community, and a moderate risk of violence.
[18] DFAT 2018 Report, para 3.106; see also DFAT 2019 Report, para 3.156.
In response to country information, the applicant said that most of the international groups see it from their own eyes, the way they want to see it. He said the UN didn’t care about the issue. He said that he was not young anymore and he can’t change. He said he was not trying to change his sexual path. He referred to news of police action in Kandy against the filming of a gay wedding as an indication of the status of LGBTI rights in Sri Lanka. He said he was ‘worried about this situation if this escalated’. The Tribunal understood the applicant to be talking about news reports of police in Kandy closing down a reality TV production over accusations they were filming a gay wedding scene.[19]
[19] >
The Tribunal put to the applicant that while country information may suggest there are societal pressures to be discreet about his orientation, such pressures may be regarded as not detrimental enough to amount to persecution. As the applicant is not open about his sexuality and does not wish to be so due to the shame it may bring onto his family, as well as his previous belief it would affect his custody case, this indicates he would not be easily identified as bisexual in Sri Lanka.
The applicant said that ‘If I go back, all the wounds will start. They want to destroy my life.’ He said they will destroy his life by making it public and miserable for him. He said they wanted to destroy his life because they thought he had destroyed his wife’s life by being married to a bisexual man. He said while they don’t know his address, his ex-wife knows his friends and they have the connection of children. He said his ex-wife is Christian and has strong Christian friends and that is why she will tell them. He said she would find out from friends where he was. The Tribunal queried why his friends would inform people who wished to harm him of his whereabouts and he said that people would find out because they would post on social media that he was in Sri Lanka.
The Tribunal notes that he had told the delegate that although his former wife had sought to damage his reputation Sri Lanka by informing some of his friends and family, she had not made his sexuality publicly known. He responded that whomever she has told didn’t talk to him much. The Tribunal put to the applicant that country information suggested that even if the information were to become publicly known, the discrimination he may face does not amount to persecution. The applicant responded that it is happening there and referred again to the reports in Kandy.
The Tribunal put to the applicant that as he does not wish his past to be known and does not wish to be in a same-sex relationship for the sake of his custody battle and to avoid the shame to his family, his behaviour reduces the likelihood that he will be known as a bisexual. Even if his former wife’s family try to have him imprisoned as there had been few reported prosecutions and hardly any persons being charged of such offences in Sri Lanka, and it seemed likely they would not be successful. The Tribunal noted the delegate found this would especially be the case since he has not been involved in the LGBTI community for almost 20 years. Further, the Tribunal noted that on his evidence regarding harm from his own family and friends, their being informed of his past had resulted in the withdrawal or limitation of contact with him rather than threats of harm towards him. The applicant said maybe, but he thought he would be named and arrested.
The Tribunal accepts the applicant is bisexual and has engaged in same sex relationships in Sri Lanka. There were inconsistencies in the applicant’s evidence about when he had been involved in same sex relationships, having told the Department he had not been involved in same sex relationships since he married and later suggesting to the Tribunal he had been involved in same sex encounters in 2005 and 2006. The Tribunal accepts this may have arisen from a confusion regarding references to ‘partners’ as equating with more serious relationships and others as casual sexual encounters. Giving the applicant the benefit of any doubt, the Tribunal accepts the applicant may have had casual same sex encounters in Sri Lanka in 2005 and 2006. The Tribunal also accepts he may have had sexual encounters in 2010 but has not engaged in same sex encounters since that time. The Tribunal also accepts that consensual same sex activity is illegal in Sri Lanka.
However, the Tribunal does not accept on the evidence that there is a real chance the applicant would be seriously harmed on return to Sri Lanka based on his bisexuality or his previous same sex relationships. On the applicant’s own evidence, he was active as a bisexual man in Sri Lanka from the age of [age] and did not come to the adverse attention of authorities on that basis while in Sri Lanka. He did not claim to have come to the attention of authorities since, but claimed his wife’s family may report him to the authorities. For the reasons detailed above, the Tribunal does not accept that they would. Further, and in any event the Tribunal does not accept that, if they did, the authorities would act on such reports given the time that has passed since the alleged offence and country information suggesting such prosecutions are rare.
The Tribunal accepts the applicant desires to keep his sexuality private, however, the Tribunal finds that on the evidence, the applicant’s fears of persecution by his wife’s family are not genuinely held. Based on the delay in seeking protection and the failure to articulate any fear of harm on this basis over an 8 year period of interaction with the immigration system, the Tribunal does not regard it as credible that the applicant came to Australia due to fear of harm on that basis or that he feared harm on that basis as a result of threats commencing in 2010.
In any event, the harm the applicant points to as evidence of likely harm in the foreseeable future are telephone threats made to his mother, which have never been acted upon and his wife divulging details of his sexuality to his friends and family. As his family and friends are now aware of this information, it is not clear how further harm could be caused to the applicant on this basis.
The Tribunal finds that if the applicant were to return to Sri Lanka, he would continue to maintain privacy regarding his sexuality and engage in sexual relationships or encounters in a discreet manner, which is unlikely to draw the adverse attention of authorities. In this regard, the Tribunal notes the applicant has not engaged in LGBTI advocacy or community activities which might bring him to the attention to the authorities. He did not express any intention to do so in the future and the Tribunal finds that he would not do so.
The applicant was not arrested or detained when previously living in Sri Lanka. He has been able to study, work and conduct relationships without suffering serious harm. The Tribunal does not consider, given the DFAT country information, including the latest report which does not note any change to the way in which bisexuals are treated, that the circumstances have changed significantly since the applicant was last in Sri Lanka.
Based on the evidence, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm in the foreseeable future on the basis of his bisexuality or historical same sex relationships from his ex-wife’s family, the UNP or Sri Lankan authorities.
As a result, he does not meet s.5J(1)(b) as there is no real chance that if he is returned to Sri Lanka he will be persecuted on the basis of the membership of a social group of bisexual people in Sri Lanka.
Additional concerns or claims raised
Security in Sri Lanka
Following the hearing, on Easter Sunday, 21 April 2019, Sri Lanka suffered a series of bomb attacks. Three luxury hotels and three churches were attacked and more than 250 people were killed.[20] The deadliest explosion was at St. Sebastian’s Church in Negombo, some 20 kilometres north of Colombo, where more than 100 people reportedly died.[21]
[20] DFAT 2019 Report at [2.57].
[21] 'What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213.
According to the DFAT report, the Sri Lankan government attributed the attacks to Muslim extremist groups National Thowheeth Jama’ath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI). Neither group is said to have previously had a high profile. DFAT reports that according to local investigators these groups drew inspiration from, but had no direct links to, ISIS/ISIL.[22] Two days after the attacks, Islamic State in Iraq and Syria (ISIS) claimed responsibility[23], and have since named NTJ as an affiliate organisation. [24] On 29 April, ISIS leader Abu Bakr al-Bagdadhi appeared for the first time in five years, issuing a statement framing the attacks as revenge for the international community’s capture of ISIS’s final stronghold in Baghuz, Syria.[25] As some analysts have noted, the attacks appear to have been committed on behalf of ISIS’ global agenda. [26]
[22] Ibid at [2.58].
[23] What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213
[24] 'Five things to know a week after the Sri Lanka bombings', Nikkei Asian Review, 28 April 2019
[25] Sri Lanka Prime Minister assures security in the country, stern actions against inciting sectarian violence, Colombo Page, 30 April 2019, 20190501135955
[26] 'In divided Sri Lanka, a perfect storm for Islamist terror to swoop', Sydney Morning Herald, The, 27 April 2019, 20190429102358; 'The lessons from the Sri Lanka bombings', Australian Financial Review, 26 April 2019, 20190426143206
On the day following the attacks, President Sirisena declared a state of emergency, granting security services sweeping powers to arrest and interrogate people, and to conduct searches without a court order.[27] A ban on social media platforms such as Facebook, Youtube, WhatsApp and Viber, initially implemented to curb the spread of misinformation, had been lifted as of 30 April.[28]
[27] What We Know and Don’t Know About the Sri Lanka Attacks', The New York Times, 22 April 2019, 20190423102213
[28] ‘Sri Lanka lifts social media ban imposed after Easter attacks’, Aljazeera, 30 April 2019, 20190501145953; ‘Sri Lanka on high alert over Ramadan terror threat’, Straits Times, 1 May 2019, 20190501134734; ‘Sri Lanka bombings: All the latest updates’, Aljazeera, 30 April 2019, 20190501142357

Having considered the applicant’s profile and the country information, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm or significant harm he returns to Sri Lanka as a failed asylum seeker from a Western country.
Additional issues – delay in seeking protection and immigration history
The applicant came to Australia in January 2008. He told the Tribunal he left because of problems with his (then wife) due to his bisexuality in Sri Lanka, yet he did not seek protection until November 2015. This raises a concern as to the extent of his claimed fears in Sri Lanka. During the period from the expiry of his initial student visa in March 2010 until he filed the protection visa application in November 2015 (and following a further request for Ministerial Intervention in 2016), the applicant has sought to remain in Australia via a number of other migration channels. As detailed in the delegate’s decision and raised with the applicant at the hearing, he did not mention the claims he has now raised in his applications or requests to remain in Australia. This includes in his initial application for the protection visa. At the hearing, the applicant told the Tribunal he was not sure what to do and he didn’t want to make his issues public. However, he also claims that his ex-wife has told family and friends about his sexual history and he fears return on that basis.
The delegate’s decision details that the applicant has applied for several visas and has sought Ministerial Intervention on four occasions in an effort to remain in Australia, and has not raised issues of harm on return to Sri Lanka. He stated in his Ministerial Intervention request of 18 August 2015 that he was willing to return to Colombo and made no mention of these protection claims issues in his Ministerial Intervention request in May 2016. Further, it was put to the applicant that the delegate’s decision recorded that he had said he would not have applied for a protection visa f there were any other legal option and that he was attempting to apply for another visa (presumably the final Ministerial Intervention request). In reply, the applicant confirmed this was the case and stated that ‘as long as I can live peacefully, didn’t know what was going to happen to my life.’
It was put to the applicant, as found by the delegate, that his behaviour with respect to his visa history may indicate that he applied for asylum as he had no other options available in order to extend his stay in Australia. This may suggest that his claims of being harmed upon return to Sri Lanka were not genuine. He denied this and contended that he explained that he followed all the rules and regulations in Australia without going down the protection visa path.
The Tribunal is not persuaded by the applicant’s explanations for his delay in seeking protection and his failure to raise his claims earlier. The applicant had ample opportunity to seek advice and assistance and the Tribunal regards that he would have done so in a more timely fashion if he had left Sri Lanka to escape persecution as a bisexual or because of threats from his ex-wife’s family, or if he feared returning to Sri Lanka for those reasons. The Tribunal finds the applicant’s failure to apply for protection earlier or to raise his fear of claimed harm on return to Sri Lanka is an indication that he was not fearful of serious harm when he arrived in Australia or during a significant period during which he now claims to have been receiving threats of harm from his ex-wife and her family (since 2010).
Cumulative factors
The Tribunal considered whether the combination of factors affecting the applicant would mean he has a real chance of serious harm if he returns to Sri Lanka.
In particular, the Tribunal considered whether his bisexuality, relationship with his ex-wife and her family and return from Australia would mean he would come to the attention of authorities. The Tribunal is not satisfied there is a real chance he would come to the attention of Sri Lankan authorities such that there would be a real chance of detention, or adverse treatment due to any or all of the combination of his sexuality, dispute with his ex-wife’s family as supporters of the UNP or as a failed asylum seeker.
Having considered all the factors in combination with each other and also cumulatively, the Tribunal finds there is no real chance the applicant would be persecuted because of real or imputed political opinion or membership of a particular social group, and he does not meet s.5J(2)(b).
Conclusion on refugee criterion
As the Tribunal has found that none of the applicant’s claims individually or cumulatively result in him meeting the criteria to have a well-founded fear of persecution, he does not meet s.36(2)(a) for the grant of a protection visa, and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
COMPLEMENTARY PROTECTION
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are 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 is set out in s.36(2A) of the Act. A non-citizen will suffer significant harm if the person will be arbitrarily deprived or his or her life, the death penalty will be carried out, the person will be subjected to torture, the person will be subject to cruel or inhuman treatment or punishment or the person will be subjected to degrading treatment or punishment.
Under s.36(2B) there is taken not to be a real risk of significant harm if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk of significant harm, or the person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm, or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Section 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: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has found that the applicant does not face a real chance of serious harm as a bisexual, due to his history of same sex relationships, a perception he is bisexual, due to a conflict with his ex-wife’s family as supporters of the UNP, as a failed asylum seeker, due to medical issues or because of his separation from his children. For the same reasons, the Tribunal finds he does not face a real risk of significant harm.
The Tribunal finds that the applicant will have some family support in Sri Lanka and has skills that mean he can seek employment. He has indicated he jointly owns property in Sri Lanka. The Tribunal finds he will not suffer significant harm if he returns to Sri Lanka in terms of being arbitrarily deprived of his life, subjected to torture, subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.
As a result, the Tribunal finds the applicant does not meet the criteria in s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – 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; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 2318

4 June 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction