1703903 (Refugee)

1703903 (Refugee) [2021] AATA 3817 (29 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703903
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Alison Murphy
DATE:29 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 July 2021 at 10:32am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – fear of harm from rival organisation and from official of employer for unauthorised leave to participate in international event – attack and threats to applicant and family members – credibility – inconsistent claims, evidence and chronology – initial intention to return inconsistent with claims of threats made before travelling – resignation or dismissal, and application for reinstatement – loss of pension and benefits as former employee as result of own actions not ‘significant harm’ – anonymous allegation given little weight – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2), 65, 424A, 437, 438(1)(a)
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia as the holder of a Visitor visa [in] October 2014 and applied for the visa on 20 November 2014. The delegate refused to grant the visa on 14 February 2017, not being satisfied the applicant was owed protection by Australia.
The applicant appeared before the Tribunal on 5 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.
The applicant was represented in relation to the review by her registered migration agent.
While the applicant appeared before the Tribunal in person at its Melbourne registry, her representative sought leave to appear from Queensland. To facilitate this an MS teams video connection was established by the Tribunal and the hearing room was rearranged so that all participants were visible on camera. However, on the day of the hearing technical difficulties rendered the video at the representative’s end inoperable with the effect that while the representative was visible on screen in the hearing room, the hearing room and its participants were not visible to the representative. In these circumstances, and to enable the applicant and the interpreter to be positioned so that they could see each other clearly and communicate most effectively, I directed that the video connection be stopped and the connection to the representative in Queensland be resumed by telephone only.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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 a person who holds a Protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
A summary of the relevant law is attached and marked Attachment A.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70
The delegate did not accept all of the applicant’s claims to be true. Similarly, the Tribunal has significant concerns about the credibility of parts of the applicant’s evidence. Ultimately these concerns have has caused the Tribunal to consider that some parts of the applicant’s evidence should not be accepted. The Tribunal’s particular findings are discussed below.
Section 438 certificate and section 424A letter
The Tribunal has before it the applicant’s departmental files relating to the grant of the protection visa and her earlier visitor visa applications. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s.438 of the Act.
On 13 December 2019 a delegate of the Minister issued a certificate under s.438(1)(a) of the Act relating to information provided to the Tribunal by the Department concerning an anonymous allegation received by the Department about the applicant’s protection claims.
Where a certificate is issued under s.438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. A copy of the certificate dated 13 December 2019 was provided to the applicant and the Tribunal received submissions as to its validity on 19 July 2021.
Section 438(1) applies to information where the disclosure of any matter contained in the document would be contrary to the public interest for any reason specified in the certificate, (excluding matters contained in s.437(a) and (b) which relate to Australia’s security, defence or international relations and deliberations or decisions of Cabinet).
The certificated document contains information potentially adverse to the review that was not provided to the Department or the Tribunal by the applicant. I consider that information, if relied upon, may form the reason or part of the reason why the Tribunal would affirm the decision under review and as such the information is subject to the provisions of s.424A.
A valid certificate does not override the obligation to provide particulars of information under s.424A and for this reason I discussed the gist of the information with the applicant at hearing and wrote to her following the hearing putting that information to her pursuant to the provisions of s.424A. That information was particularised as follows:
The Department has received an anonymous allegation in relation to your protection visa application. It is alleged that you do not have any political issues in Sri Lanka and you can return home at any time. It is alleged that you were not a victim of political violence in Sri Lanka, rather your [body part] was injured in a motor vehicle accident. It is alleged that your intention in coming to Australia was to obtain financial benefits and that you have provided false information to Centrelink and obtained personal loans and credit cards from Australian banks.
This information is relevant because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may also cause the Tribunal not to accept that you have a well-founded fear of persecution if you return to Sri Lanka or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Sri Lanka. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
In her response to the s.424A letter, the applicant explained that following an injury to her husband in the course of his employment as [an Occupation 1], he had suffered from serious health issues. She has been receiving Centrelink unemployment benefits and had applied for a personal loan and a credit card through her broker. She maintains that those benefits and loans were provided to her on the basis of true and correct information on her part. She has provided untranslated copies of documents that appear to relate to her husband’s employment with [Employer 1] and medical history.
The applicant has also provided a significant amount of correspondence between herself, the Fair Work Ombudsman and a third party in relation to her underpayment during the time she was employed as [an Occupation 2] at [Employer 2]. She states in essence that the third party reported the underpayments to the Fair Work Ombudsman without the applicant’s knowledge who commenced an investigation. When the Fair Work Ombudsman contacted the applicant seeking further information, she withdrew the complaint.
The applicant’s failure to progress her case through the Fair Work Ombudsman appears to have caused a dispute with the third party, who made a police complaint and obtained an intervention order against the applicant. The applicant has provided copies of the relevant documents, including the correspondence between herself, the third party and the Fair Work Ombudsman, a copy of the intervention order issued by the [Magistrate’s Court] in January 2021 in the applicant’s absence and a letter dated 19 July 2021 from the third party. That letter states that her dispute with the applicant has been resolved amicably, that there have been no further incidents between them and that she has no intention of seeking the intervention order be extended when it expires in March 2022. I accept the applicant’s account of these matters and the genuineness of the documents she has provided.
I note the allegation made to the Department is anonymous and cannot be tested. The allegation appears malicious in nature and provides little meaningful detail about the events the applicant claims took place in Sri Lanka. For these reasons I give it little weight. While I have not accepted parts of the applicant’s claims to be true, I have reached my findings on the basis of the evidence provided by the applicant and not on the contents of the allegation.
Country of nationality
It is not in dispute that the applicant is a Sri Lankan national. She has produced to the department a copy of her Sri Lankan passport as well as numerous other documents relating to her employment, bank accounts and [activities] in Sri Lanka. The delegate was satisfied she is a Sri Lankan national and assessed her claims on that basis. The Tribunal finds that Sri Lanka is the applicant’s country of nationality and the receiving country.
Personal background
The applicant is a [age]-year-old female from [Town 1] in Sri Lanka’s Western Province. In her visa application she states she is of Sinhalese ethnicity and Buddhist faith. She is married with two [children] aged [age], [age] and a [child] aged [age]. At hearing she stated that her children live with her husband in [location], Western Province.
At hearing the applicant confirmed that after completing high school in [year] she worked as [an Occupation 3] at [Town 1] [workplace] for 14 years. She was then transferred to [Head office] in Colombo where she became part of the [Work team] under [Mr A].
The delegate accepted the applicant was [an Activity 1 participant] and [Occupation 3] prior to her departure from Sri Lanka in October 2014. I note the significant amount of documentation the applicant has produced in respect of her [achievements], as well as the departmental files indicating she has twice obtained visas to enter Australia to participate in [Activity 1 events]. I accept that at the time she came to Australia, the applicant had been a [participant] in [specified events] and that she represented Sri Lanka in [Activity 1] at an international level.
I also accept that the applicant was [an Occupation 3] prior to her departure from Sri Lanka in October 2014. In making that assessment I have had regard to the documentary evidence of the applicant’s employment produced in support of her protection visa application and her earlier tourist visa applications.
According to her protection visa application, the applicant travelled to [Country 1], [Country 2], [Country 3], [Country 4] and Australia to [participate] in [Activity 1] events on [number] occasions between 2010 and 2014.
The applicant first travelled to Australia on a tourist visa in October 2013, staying two weeks. She next arrived in Australia [in] October 2014, having been granted a further tourist visa to participate in [Event 1] . At hearing the applicant gave evidence she had won [an award] at that [event].
The applicant did not return to Sri Lanka at the conclusion of [Event 1] and has not departed since that time. She lodged the application for the protection visa on 20 November 2014. In the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, the delegate records that the application for the protection visa was lodged the day before her tourist visa expired.
I accept the above matters to be true.
The applicant’s claims for protection
In her visa application, the applicant states that she left Sri Lanka to participate in [Event 1] in [Australia] in 2014. She was an active member of [Organisation 1], participating in many national and international [events].
During 2014, a conflict developed between the members and committee of [Organisation 1] which caused it to divide into two groups, being [Organisation 2] and [Organisation 3]. The applicant claims that as a result of this conflict, [Organisation 2] wouldn’t allow her to participate in any listed events such as [Event 2 in Country 5] 2014. She was threatened by [Organisation 2] in order to force her out of participating in the upcoming [event] and to withdraw from [Event 1 in] 2014. She refused to withdraw, having fulfilled all the requirements, and received death threats stating she should not return to Sri Lanka.
The applicant claims she will be harmed by the [Office Bearer 1] ([Mr B]) and members of [Organisation 2] ([Ms C] and [Ms D]) if she returns to Sri Lanka because of her support for the rival [group Organisation 3]. She claims that [Organisation 2] are powerful and able to influence government and leading politicians and that if she returns to Sri Lanka, they will take their revenge on her.
At the departmental interview and at the hearing before the Tribunal on 5 July 2021, the applicant gave further evidence about her fear of harm from members of [Organisation 2]. She gave evidence that her dispute with the old [Organisation 2] and its [Office Bearer 1], [Mr B], started around the time of a 2012 [event] in [Country 6], when [Mr B] did not allow the [participants] to get their own concession rate tickets as government [representatives] but required them to book their tickets through [airline] for a higher fee. The applicant claims that [participants] were not given any government funding and had to pay their own expenses or find their own sponsors and she believed this was an injustice.
The applicant claims she complained in writing to [Government Department 1] who conducted an inquiry. The applicant was summonsed to appear at the inquiry and identified as the person who had made the complaint against [Mr B]. As a result, she was not invited to participate in any further [events] including [Event 2] 2014 and she was pressured to withdraw from [Event 1] in Australia in 2014, despite having fulfilled all the requirements for selection in that event. The applicant refused to withdraw from [Event 1] and [participated] in that event after arriving in Australia in November 2014.
The applicant claims that [Mr B]’s wife is a politician representing [Political Party 1] in one of the provincial councils and [Mr B] has connections with high ranking [Employer 3 officials]. She says [Mr B] pressured [Employer 3] and [Official 1] with the result that her request to take leave from her employment in the [Work team] to travel to Australia and [participate] was not approved as it had been on other occasions. As a result the applicant called in sick to work, telling them that she would return to her duties in a few days. Instead she travelled to Australia without the permission of her employer and her employment has since been terminated and she has lost the entitlement to the pension. She claims that [Official 1] was very angry and will seriously harm her if she returns to Sri Lanka.
The applicant claims in her protection visa application that she has been subjected to death threats and ‘no return’ threats from members of [Organisation 2]. At the Tribunal hearing she also claimed she was attacked in 2013 by persons she now believes to be associated with [Organisation 2]. She claims that in the years since she left Sri Lanka her children have been subjected to threats which she attributes to [Organisation 2] or [Official 1].
The applicant claims that after her arrival in Australia she was intending to return to Sri Lanka and resume her duties. This changed after she contacted a colleague in Sri Lanka named [F] two or three days after she completed her [participation] at [Event 1]. [F] told her that [Official 1] was pretty angry about her unauthorised absence from work and travel to Australia and that she could be arrested at the airport if she returned to Sri Lanka.
At the Tribunal hearing the applicant maintained that she continued to be at risk of serious and significant harm in Sri Lanka from members of the [Organisation 2] and [Official 1] for reasons of her conflict with [Organisation 2] and her unauthorised absence from her employment with the [Work team].
Claims to fear harm from [Organisation 2]
I accept the applicant became a member of [Organisation 2] at the age of [age], participating in national and international [events]. I accept that in 2014, conflict within [Organisation 2] resulted in the formation of the new body, [Organisation 3]. In making that assessment I note that country information indicates that in 2014, the newly formed [Organisation 3] replaced [Organisation 2] who were involved in the promotion of [Activity 1] in Sri Lanka after [Organisation 2] severed ties with the [governing body].[3] I accept that the creation of the new body arose from ongoing tensions within the old body and that the two bodies operated in competition for some time.
[3] [Reference deleted]
At the departmental interview the applicant claimed that she had made a complaint against [Mr B] to [Government Department 1], and that she was summonsed to appear at a subsequent inquiry and identified as the complainant. At the Tribunal hearing the applicant stated that the conflict within [Organisation 2] started some time earlier at an event in [Country 6] in 2012, when [participants] who were paying their own travel costs were forced to purchase their air tickets through [Mr B] at rates higher than those they could have obtained as government [representatives].
I note that the applicant did not suggest in her protection visa application that she had made a complaint against [Mr B] to [Government Department 1] in 2012, nor that she was summonsed to appear at that inquiry and identified as the complainant. Rather in her visa application she suggested that the conflict within the old [Organisation 2] took place in 2014 and resulted in her being banned from participation in the 2014 [Event 2] and coerced to withdraw from participating in the 2014 [Event 1].
However I accept the claims made in the protection visa application are relatively brief and indicate more detail was to be provided. I give the applicant the benefit of the doubt and accept that she did make a complaint about travel arrangements for the [Country 6] event in 2012 as claimed which resulted in an investigation into [Organisation 2] and its [Office Bearer 1] [Mr B]. I accept that as a result of that and the applicant’s affiliation with the new [Organisation 3], the applicant was not selected for the 2014 [Event 2] and was pressured to withdraw from [Event 1] in Australia in 2014 even though she met the [requirements].

I accept the applicant refused to withdraw and travelled to Australia in 2014 to [participate] in [Event 1] as planned. At hearing she showed me [an award] she had won [at that event].
However for the following reasons I do not accept that the applicant has been harmed or threatened by the [Office Bearer 1] or members of [Organisation 2] as claimed, either before she travelled to Australia in 2014 or since. Nor do I accept her family members in Sri Lanka have been the subject of threats relating to the applicant’s dispute with [Organisation 2]. In making that assessment I have had regard to significant inconsistencies in the evidence submitted to the Tribunal.
Claimed threats made before the applicant departed Sri Lanka
In her protection visa application the applicant claimed that she had been threatened many times by [Organisation 2] prior to travelling to Australia and that they had made death threats and warned her not to return to Sri Lanka. However in the decision record dated 14 February 2017, a copy of which was provided to the Tribunal by the applicant, the delegate records that the applicant failed to mention these death threats during her protection visa interview even when asked directly, causing the delegate to consider this claim had been fabricated.
In her evidence to the Tribunal, the applicant did not suggest that she received death threats from members of [Organisation 2] before leaving Sri Lanka for Australia, rather she stated that when she arrived in Australia she thought her visit would only be a short one as she intended to return to Sri Lanka after completing her [participation] in [Event 1]. She stated that her plans to return to Sri Lanka and resume her employment only changed when she spoke to her colleague [F], who told her she could be arrested at the airport if she returned.
I consider the applicant’s evidence at the Tribunal hearing that she intended to return to Sri Lanka after completing her [participation] at [Event 1] to be inconsistent with her written claims that she received death threats from members of [Organisation 2] prior to leaving Sri Lanka and I do not accept these threats were made.
Claimed attack in 2013
The applicant claimed at the Tribunal hearing that in 2013 she was attacked by two men while riding a motorcycle resulting in a fracture to her [body part]. She did not mention that claimed attack in her protection visa application or to the delegate at the departmental interview.
At hearing she gave evidence that in March 2013 she was riding her bike on the way to an [event] when she went past two men on the side of the road. She fell off when she felt someone hit her and her [body part] became numb. She was unconscious until she woke up in hospital. She said she had since come to believe that the men who attacked her were associated with [Organisation 2]. She produced to the Tribunal a photograph of a document purporting to be a medical document confirming her injuries during that attack in 2013. While that document indicates the applicant received medical treatment for her injuries, it does not suggest that the injuries were the result of a deliberate attack.
In support of her claims to have been attacked, the applicant has provided a letter from her sister dated 24 July 2018. However, that letter is inconsistent with the applicant’s own evidence in significant respects. While the applicant states that the attack on her occurred while she was travelling to an [event], her sister’s letter states it occurred while the applicant was travelling to work. While the applicant claims the attack was motivated by her dispute with [Organisation 2], her sister’s letter suggests that it occurred in the context of political hostilities faced by the applicant when she was serving as [an Occupation 3] with the [Work team]. While the applicant claims that at the time she arrived in Australia she intended to stay for only a short time to [participate] before returning to her family and job in Sri Lanka, her sister states that the applicant decided to leave the country for her safety and that of her family, resigning from her post in Sri Lanka.
At hearing I discussed with the applicant that her sister’s letter did not appear to support her claims. The applicant stated that her sister did not know the details of her claims and was not aware of subsequent events, rather she was just providing support to her children. I also discussed with the applicant that she had not previously suggested that she had been attacked in 2013 and the applicant said she had come to believe that it was associated with [Organisation 2] because she was not involved in any other disputes at the time.
I accept the applicant was involved in an accident on her bike in 2013 in which her [body part] was injured and I accept the medical document she has submitted to be genuine. However I do not accept that accident resulted from an attack on the applicant, either by members of [Organisation 2] or any other person. Rather I consider that the applicant has fabricated that claim.
Threats to family members in Sri Lanka
The applicant claims that threats have been made to her children and family members since her departure from Sri Lanka in 2014. The applicant produced to the Tribunal a document purporting to be a police complaint made by her brother-in-law [Mr G] to the [Town 2] Police Station [in] August 2015.
That complaint suggests that the applicant had left Sri Lanka for employment abroad and her three children were being looked after by the author and his wife. Parts of that document are difficult to make sense of, but it seems to suggest that male persons telephoned the household questioning whether the applicant was the mother of the children. The author states that he had no suspects and did not know the telephone number from which the calls were coming. He states that as the calls have become a nuisance, he requests an inquiry and justice.
However when I asked the applicant at hearing when threats were made towards her children in Sri Lanka, she gave evidence that the threats occurred about three months and 12 months prior to the hearing, being around March 2021 and July 2020. When I put to her that this appeared inconsistent with the police report by her brother-in-law, she said the threats to which her brother-in-law was referring were different to the ones she was referring to. When I noted that the police report suggested she had left Sri Lanka for employment abroad rather than for the reasons she had given in her protection claims, the applicant stated her brother-in-law was not aware of her circumstances.
I consider the police report to be vague and lacking in meaningful detail. It is also inconsistent with the applicant’s own evidence and I give it little weight. For these reasons I do not accept the applicant’s children or other family members have received threats in Sri Lanka for any reason relating to the applicant.
Future risk of harm to the applicant from [Organisation 2]
In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal must consider the risk of harm to the applicant in the reasonably foreseeable future, and this assessment is a forward-looking test.
At hearing I discussed with the applicant that I was having difficulty understanding why the past disputes she had described about travel costs and selection processes within the [organisations] in 2012–2014 would cause anyone to harm her on return to Sri Lanka years later. The applicant said that those same persons were still holding their positions in the [organisations], that Sri Lanka did not have much security and that people could take vengeance for things that had happened in the past.
I discussed with the applicant that her evidence that she intended to return to Sri Lanka and resume her employment with the [Work team] after [participating in her events] might suggest she didn’t really have a genuine fear of harm from [Organisation 2] at the time she came to Australia. The applicant stated that [Mr B] had used his influence to pressure [Official 1] to refuse her leave from her employment.
While I have accepted that there was tension between the two rival governing bodies of [Organisation 2] and [Organisation 3] which affected their selection processes in 2014, I have not accepted the applicant was threatened or harmed by [Organisation 2], nor have I accepted that they have threatened her family members in Sri Lanka since her arrival in Australia as claimed.
I do not consider it plausible that [Mr B] or other members of [Organisation 2] would seek to harm the applicant if she returns to Sri Lanka, now or in the foreseeable future. In making that assessment I note that seven years have passed since the applicant arrived in Australia and her evidence is that she has not had any contact with members of [Organisation 2] during that time. I have not accepted that members of [Organisation 2] threatened or harmed her prior to her departure from Sri Lanka. I have also had regard to her evidence at hearing that at the time she travelled to Australia, she intended to [participate] and then return to Sri Lanka. Further she lodged an application for reinstatement to her former employment with the [Work team] in January 2015 and I consider her intention to return to Sri Lanka and resume her employment indicates she does not hold a genuine fear of harm on return to Sri Lanka from persons associated with [Organisation 2].
For these reasons I do not accept there to be a real chance that the applicant will face harm from [Mr B] or other members of [Organisation 2] if she returns to Sri Lanka now or in the foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm from the [Office Bearer 1] or members of [Organisation 2] as a necessary and foreseeable consequence of being returned to Sri Lanka.
Claims to fear harm from [Official 1]
[4] MIAC v SZQRB [2013] FCAFC 33.
The applicant claims to fear harm from [Official 1] because she left Sri Lanka after he denied her leave request to travel to Australia in 2014 and [participate] in [Event 1]. She claims that [Official 1] did so because [Mr B] of [Organisation 2] pressured him to refuse her leave. Her evidence is that when her leave was denied that she called in sick to work and travelled to Australia anyway, telling her employer that she would return to her duties in a few days. She claims that if she returns to Sri Lanka, she will face harm from [Official 1] because she left her employment with the [Work team] without his authorisation. It is submitted by the applicant’s representative that if she returns to Sri Lanka, [Official 1] will have the applicant killed.
At hearing the applicant gave evidence that [Mr B] was able to influence [Official 1] to refuse her leave because his wife is a politician representing [Political Party 1] in one of the provincial councils. As a result, [Mr B] has connections with high ranking [Employer 3 officials]. She claims that as a result of [Mr B]’s pressure her leave was denied with the result that she was deemed to have vacated her post. As a consequence her employment with the [Work team] was terminated and she has lost her entitlement to the pension. She claims that [Official 1] was very angry with her and will seriously harm her if she returns to Sri Lanka.
I initially had some doubts that the applicant’s employment with the [Work team] was terminated by her employer as claimed, noting that the documents from her sister and brother-in-law suggest that she resigned her employment and travelled abroad for employment purposes. Further, she has submitted what appears to be an employment reference from the [Official 2] of the [Work team] dated [October] 2014, the day before she departed Sri Lanka for Australia. That letter sets out her employment history with [Employer 3] and wishes her success in her future endeavours.
However, having regard to the letters submitted by the applicant from her former employer, I accept her employment was terminated in the manner set out in that correspondence. The first letter is dated 21 November 2014 and is addressed to the applicant, advising her that she has been deemed to have vacated her post (as a [Job position] in [Employer 3]) from [October] 2014 when she failed to report for obtained duty. The letter advises her to return any [property] in her custody (such as official identity cards, documents, passwords, etc.). It states that in view of her vacation of her post, she is not entitled to be reappointed to another [post] and forfeits the right to receive a pension under the [relevant provisions]. The letter is signed by [Mr H], [Official 3] of [Employer 3], [Work team].
The second letter is dated 8 December 2015 and is signed by [Mr I], [Official 4] of [Employer 3], Director of [Administrative function]. It is addressed to the applicant regarding her request for reinstatement. The letter states that having considered her appeal, and as the applicant had gone abroad without permission, the [division] had not made a recommendation for her reinstatement in keeping with the [pensions provisions].
On the basis of these letters, I accept that the applicant’s employment with [Employer 3] was terminated on 21 November 2014 after she was deemed to have vacated her post. I accept she lodged an appeal seeking reinstatement, but her appeal was denied. I accept that as a result, she is no longer entitled to the pension she would otherwise have been granted as [an Employee 3] or to alternative [employment].
However, I do not accept there to be a real chance that [Official 1] would otherwise seek to harm the applicant if she returns to Sri Lanka, now or in the foreseeable future. In making that assessment I note:
·The applicant did not suggest in her protection visa application that she had any fear of harm from [Official 1], rather she claimed at that time to fear harm from [Organisation 2]. At hearing the applicant stated this was because she did not know that her employment had been terminated at the time she lodged her visa application. While I accept that she had not received her termination notice when she lodged her visa application, she had on her own evidence been absent from her employment without leave for more than three weeks, having falsely informed her employer that she was sick and would return in a few days before leaving the cuntry. In these circumstances the termination of her employment is unsurprising;
·There is no evidence that [Official 1] was involved in the termination of the applicant’s employment. None of the correspondence relating to the termination is signed by [Official 1]. Rather her termination letter was issued by [Mr H], [Official 3] of [Employer 3] in the [Work team]. The letter notifying her of the outcome of her appeal is signed by [Mr I], [Official 4] of [Employer 3], Director of [Administrative function], [Head office], Colombo. That appeal appears to have been dealt with independently from the [Work team];
·Given my overall serious concerns about the applicant’s claims, I do not accept that [Mr B] influenced [Official 1] to refuse the applicant’s leave to [participate] as she claims. Nor do I consider there to be any credible reason why [Official 1] would seek to harm the applicant seven years later. As noted above, the termination of her employment after an absence of several weeks after calling in sick and leaving the country was upheld on review and is hardly an unsurprising outcome;
·At hearing the applicant gave evidence that the former [Official 1] is now [a Government official] in Sri Lanka and country information indicates that he has been appointed to the position of [Government official] to [perform a specified function].[5] I consider the fact that the former [Official 1] is no longer in the employment of [Employer 3] to be further evidence that he would not be motivated to harm the applicant for reasons relating to the termination of her employment with that agency seven years ago.
[5] [Reference deleted]
For these reasons I do not accept there to be a real chance that the applicant will face harm from [Official 1] if she returns to Sri Lanka now or in the foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[6] For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm from [Official 1] as a necessary and foreseeable consequence of being returned to Sri Lanka.
Harm from loss of employment and pension
[6] MIAC v SZQRB [2013] FCAFC 33.
For the reasons set out above, I have accepted the applicant’s long term employment with [Employer 3] was terminated after her arrival in Australia and that she has lost her entitlement to the pension she would otherwise have received as well as the right to be reappointed to another [post].
At hearing I discussed with the applicant that the loss of her employment and pension does not appear to have occurred for reasons of her race, religion, nationality, membership of a particular social group or political opinion; rather it occurred because of her breach of the terms of her employment. I have considered the applicant’s claim that her leave was refused because of the influence of [Mr B] and the political connections of his wife, but for the reasons set out above I have not accepted that to be the case.
Rather I consider the applicant’s employment was terminated because of the applicant’s own actions where she called in sick and then travelled to Australia to [participate] in an [event] without approved leave. The loss of her pension and future [employment] rights did not occur for reasons of her race, religion, nationality, membership of a particular social group or political opinion and does not constitute persecution for the purposes of the refugee assessment.
In considering whether the loss of a pension and future [employment] constitutes ‘significant harm’ for the purposes of complementary protection, I note that term is exclusively defined in s 36(2) of the Act as follows:
(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.
I do not consider that paragraphs (a) – (c) above are engaged by the loss of future [employment] and/or a [pension]. In considering whether the loss of those benefits comes within the meaning of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ for the purposes of paragraphs (d) and (e), I have had regard to the definitions of those terms contained in s 5(1).
While I accept the applicant is disadvantaged by the loss of her entitlement to those employment benefits, I do not accept their loss is of a severity that would constitute ‘severe pain and suffering’. Nor do I accept it constitutes the intentional infliction on the applicant of pain and suffering, that could reasonably be regarded as cruel or inhuman in nature in all the circumstances. In making this assessment I note that the circumstances in which the applicant lost those benefits were that she breached the terms of her employment by absenting herself from her employment as [an Occupation 3] without approved leave. For these reasons I do not accept the loss of those benefits constitutes ‘cruel or inhuman treatment or punishment’ as that term is defined in s 5(1).

Similarly I do not consider that the loss of those employment related benefits is an act intended to cause extreme humiliation which is unreasonable as required by the definition of ‘degrading treatment and punishment’ contained in s 5(1). Rather the loss of those benefits arose as a consequence of the applicant’s breach of the terms of her employment and not because of an act or omission intended to cause the applicant extreme humiliation. As such I do not accept it constitutes ‘degrading treatment and punishment’, as that term is defined in s 5(1).
For these reasons I do not accept there to be a real risk that the applicant would face ‘significant harm’ if she is returned to Sri Lanka for reasons relating to the loss of her employment and related benefits.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Alison Murphy
Member

ATTACHMENT A – THE RELEVANT LAW
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2021] AATA 3817

29 July 2021

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

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