1712080 (Refugee)

1712080 (Refugee) [2023] AATA 2423 (8 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Munashe Rusamo
CASE NUMBER: 1712080

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Rachel Da Costa
DATE:8 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 08 May 2023 at 10:42am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE) – Tamil separatist views – particular social group – illegal departure – failed asylum seeker – escape from refugee camp – detention – torture – political activities in Australia – social media activity – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 16 May 2017 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, applied for the visa on 21 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He was born in [specified year] in [Village 1], [Town 1], Northern province, Sri Lanka. He speaks, reads and writes Tamil. His ethnicity is Tamil and he is a Hindu.
He married in 2006. He contacts his wife daily by telephone. He has a brother-in-law in Australia who is a Sri Lankan citizen.
In India, the applicant lived in a refugee camp in the state of Tamil Nadu. He arrived in Australia [in] June 2016[1] as an unauthorised maritime arrival at Christmas Island. He left Sri Lanka in 1997 illegally by boat.
[1] According to movement records and the delegate’s decision the applicant arrived in Australia [in] June 2012.
His Bridging visa E was cancelled in November 2013 after he was convicted of two [offences].
In the Tribunal hearing and pre-hearing submissions, the applicant gave evidence that his mother, father and [family members] all live in Tamil Nadu, India, along with his wife [and children]. In Sri Lanka, there are some relatives of his mother who live in Jaffna but he is not in contact with them. His wife’s [specified relatives] live in Australia. One is an Australian citizen [details deleted].
Migration history
Based on information contained in the delegate’s decision and on the Tribunal and Departmental files and the applicant’s written submissions, the applicant’s migration history is as follows:
·     [June] 2012: applicant arrives in Australia by boat as an unauthorised maritime arrival
·     29 July 2012: applicant attends an Irregular Maritime Arrival Interview
·     14 November 2012: applicant applies for a Protection (class XA) visa
·     4 March 2013: applicant’s Protection visa application refused
·     March 2013: applicant applied for review of the Protection visa refusal in the Refugee Review Tribunal (RRT)
·     28 November 2013: applicant’s Bridging visa E cancelled
·     11 December 2013: MRT affirms the decision to cancel the applicant’s Bridging visa E
·     22 January 2014: RRT affirms the decision not to grant the applicant a protection visa
·     January 2014: applicant applies unsuccessfully for Ministerial intervention
·     [February] 2014: applicant lodges an application for judicial review with the Federal Circuit Court (FCC)
·     10 July 2014: applicant is sent a letter informing him that he was affected by unauthorised access to personal information (the ‘data breach’) and inviting him to provide information
·     [May] 2015: FCC dismisses the applicant’s application for judicial review
·     13 April 2016: Minister lifts the s 46A bar which allows the applicant to lodge an application for a protection visa
·     23 December 2016: applicant applies for a Safe Haven Enterprise visa (SHEV)
·     10 May 2017: applicant attends an interview with the Department in respect of his SHEV
·     17 May 2017: applicant’s SHEV application is refused by the Department
·     7 June 2017: applicant lodges an application for review by the Tribunal of the Department’s decision to refuse his SHEV application.
Evidence before the Department
SHEV application
The applicant’s claims in support of his SHEV application are contained in a written statement dated 22 October 2012 which the applicant provided in support of his first protection visa application made on 14 November 2012. The applicant claims as follows:
·     He was born in [Town 1], Northern province, Sri Lanka. He is Tamil and a Hindu.
·     He is married with [number] children.
·     His father was a farmer and made [specified products] and his mother was a housewife.
·     When he was very young, the war came to [Town 1] and his family were displaced and moved to [Village 1].
·     There was a lot of Liberation Tigers of Tamil Eelam (LTTE)[2] movement in the area. Also, his family had young boys (the applicant and his brothers) and so the authorities were suspicious of them because young boys were often recruited by the LTTE.
·     While in [Village 1], his father was arrested by the Sri Lankan Army (SLA) and detained many times. His father was tortured in 1995 and 1996. They were suspicious that he was supporting the LTTE. He was not supporting the LTTE.
·     The family continued to have problems after the applicant’s father was released from prison so then his father decided they should move to India. His father also feared that the LTTE would try to recruit the applicant and his brothers.
·     When the applicant was about [age] years old his whole family moved to India. They travelled illegally by boat. They lived in a refugee camp in Tamil Nadu. His family is still there.
·     Life in the refugee camp was hard. The applicant decided to come to Australia because he could see no hope or future for his family in India.
·     His old house and farmland in Sri Lanka are under army control so his family would not be able to return there to make a livelihood. It is not safe for Tamils in Sri Lanka. He does not speak Sinhalese. He does not know anyone in Colombo.
·     If the applicant returns to India, he fears harm because of his Tamil ethnicity and being from the Northern province, his father was accused of supporting the LTTE, he has been outside Sri Lanka for a long time and has sought asylum in Australia, he has no documents for Sri Lanka and would have to register on return.
Interview with the delegate
[2] See DFAT Country Information Report Sri Lanka 23 December 2021 (DFAT Report).
On 10 May 2017, the applicant attended an interview with the Department to discuss his protection visa application. In the interview, the applicant provided further relevant information as follows:
·     His family relocated to India in 1997. In India, he has his parents, [specified family members] and his wife and children. He has no close family in Sri Lanka.
·     When they were living in [Village 1], his father did volunteer works at a school helping Tamil people to get ID and ration cards. His father was liaising with the authorities to get these cards. Some people didn’t like this and complained to the SLA. The SLA thought he was helping the LTTE and so they arrested him.
·     In around 1995, the applicant’s father was arrested for [number] days and tortured. After this, his father decided they should move to India.
·     The applicant’s father was detained and tortured by the SLA a few times.
·     The first time they tried to go to India, their boat was caught by the Navy and they were taken to [Town 2] and the applicant and his father were questioned. They beat his father during questioning.
·     They were detained in a camp for seven to eight months. The LTTE helped them to escape from the camp and they took a boat from the seaside to India. They departed Sri Lanka illegally.
·     Two of the applicant’s cousins were in the LTTE. He does not know their position or what happened to them. One came to visit them from a training camp and the other one they were told was in the LTTE.
·     The applicant fears returning to Sri Lanka because of his father’s problems having been suspected of links to the LTTE. He also fears returning there because he is a Tamil, he left Sri Lanka a long time ago, he has no family there to help bail him out if he is put in jail, the LTTE helped them escape from the camp and he will be arrested and killed.
The delegate’s decision
On 16 May 2017, the delegate made her decision. In her decision, the delegate referred to the fact that the applicant’s claims for protection were assessed by the Department in 2013 and the RRT in 2014 and the applicant was not found to engage protection obligations.
The delegate found that the applicant’s father may have been suspected of being an LTTE supporter due to his Tamil race, but not due to his employment and that his engagement with the authorities was inconsistent with his being under suspicion from them for having links to the LTTE. The delegate did not accept that the applicant’s father, or the applicant’s cousins who may have had a low-level involvement with the LTTE, would have a profile of ongoing interest to the authorities and therefore, neither would the applicant. The delegate found that as a Tamil from the north of Sri Lanka the applicant did not have a well-founded fear of persecution. The delegate found that as the applicant would not have a profile of adverse interest to the authorities, he was not at risk of persecution during processing at the airport on his return.
The delegate found that the applicant was not at risk of persecution as someone who had been absent from Sri Lanka for an extended period and who had spent time in a refugee camp in Tamil Nadu, or as someone who departed Sri Lanka illegally in 1997, or as a returned failed asylum seeker, or as a person affected by the data breach. The delegate was not satisfied that there was evidence to indicate that the authorities would be aware that the LTTE helped the applicant and his family escape Sri Lanka or that any LTTE connection or profile would be imputed to him. The delegate found that any fine imposed on the applicant due to his illegal departure would not amount to persecution and nor would a short period of detention if this were to occur. The delegate was not satisfied that the applicant would face persecution if he returned to Sri Lanka and found that he is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 7 June 2017, the applicant lodged an application for review by the Tribunal of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.
Pre-hearing submissions
On 31 March 2023, the applicant’s representative provided extensive written submissions. Attached to the submissions were:
·     A new statutory declaration from the applicant dated 28 March 2023;
·     Numerous screenshots of social media posts in the name [Name 1] from 2013 to 2023. These are mostly in the Tamil language and are not accompanied by English translations;
·     Evidence relating to the applicant’s membership of the [Team 1] cricket team in Australia;
·     Photographs of the applicant at what is described as a ‘Tamil Separatist Rally’.
The written submissions provide a brief overview of the history of the applicant’s application, information on his family members and a chronology of events with some commentary included. The Tribunal is of the view that some of the commentary in the chronology relating to claimed events in Sri Lanka potentially strays into evidence rather than submissions and may have been more appropriately included in the applicant’s statutory declaration.
It is submitted that the primary issue in the application for review is whether the applicant has a profile such that on arrival in Sri Lanka he would be subject to, or at risk of, significant harm at the hands of the Sri Lankan security forces. More specifically, whether there is real chance of the applicant being interrogated by the Sri Lankan authorities on return, whether he would be identified during this interrogation as a person with a profile warranting further investigation or close monitoring, and whether there is a real chance that this further interrogation or close monitoring would give rise to persecution.
The submissions refer to country information in the DFAT Report and a 2022 UK Home Office Report on Tamil Separatism[3] about the process for returnees arriving from overseas at the airport in Colombo. It is submitted that there is a real chance the applicant will be interrogated by the authorities on return. It is submitted that based on the applicant’s profile, he would be perceived as a Tamil separatist and a person with strong ties to the LTTE and he will therefore be identified as a person warranting further investigation. It is submitted that through this further investigation, the authorities will discover the records relating to the applicant’s father, his family’s illegal departure to Sri Lanka with the assistance of the LTTE and the applicant’s online presence which demonstrates his support for Tamil separatism. The submissions refer to the evidence provided in support of this. In relation to the applicant’s Tamil separatist views, the submissions refer to the 2021 UK Upper Tribunal decision of KK and RS[4] and the factors that the Sri Lankan authorities are likely to be interested in in determining whether a person has undertaken a significant role in Tamil separatist activities outside Sri Lanka. It is submitted that if the applicant is detained and interrogated, he faces a real chance of serious harm. The submissions refer to country information in support of this, including from the DFAT Report, KK and RS, the US Department of State and the UK Home Office Report.
Statutory declaration dated 28 March 2023
[3] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism August 2022 (UK Home Office Report 2022)
[4] KK and RS (sur place activities, risk) [2021] UKUT 130 (KK and RS)
In his statutory declaration, the applicant provides the following relevant information about events in Sri Lanka:
·     In around 1997, the applicant and his family fled to Tamil Nadu, India.
·     In Sri Lanka, his family, especially his father, experienced extreme violence at the hands of the Sri Lankan authorities due to their imputed political opinions as supporters of the LTTE.
·     The authorities targeted the applicant’s father because they believed he was an important member and supporter of the LTTE.
·     When the war came to [Town 1], the applicant and his family were internally displaced and had to move to [Village 1].
·     The applicant’s father was [an occupation 1] who volunteered at the local school helping Tamils obtain ration and ID cards. The Sri Lankan authorities were suspicious of him and thought he was helping the LTTE in the area. Although he was working with the authorities, they thought there was more to his work than he said and that he was an important cog in LTTE operations in the area.
·     The applicant and his brothers were quite young and were regularly approached by the LTTE to join them. It looked as though they were active members and participants in LTTE activities. The authorities thought they had been recruited by the LTTE.
·     In the 1990s, the applicant’s father was imprisoned, beaten and tortured multiple times because of his perceived LTTE connections. He was taken away for months at a time.
·     The Sri Lankan authorities also began threatening violence against the applicant and his brothers and cousins for their perceived affiliation with the LTTE.
·     In 1997, the applicant’s father was imprisoned for a long time. When he was released, the applicant’s parents decided it was time to flee Sri Lanka.
·     In 1997, they attempted to flee Sri Lanka by boat but were intercepted by the Navy. The applicant, his father and brothers were beaten for attempting to flee Sri Lanka. They were detained in a camp in [Town 2]. The applicant is sure that there is a record of his family’s attempt to flee and their detention in the camp.
·     There were dangerous LTTE members in the camp. The Sri Lankan Navy associated the applicant’s family with these people and perceived them to be part of the LTTE.
·     Later that year, with the help of the LTTE, the applicant and his family escaped the camp and successfully fled to India.
·     His family still resides in Tamil Nadu as refugees.
·     The applicant fears he will experience the same level of violence as his father if he returns to Sri Lanka.
In his statutory declaration, the applicant also makes claims about his political opinion as follows:
·     He believes in the need for a separate Tamil homeland.
·     It is his strong desire to live in his home country which is run by his own people. He thinks Tamil people will never have equal rights in Sri Lanka so long as they are a minority. Sinhalese people in authority will always favour their own people. The language barrier is another disadvantage for Tamils in dealing with the authorities. If Tamil people had their own country, they would have peace and the Tamil authorities would understand them and understand their needs.
·     During 2012 and until he was detained in 2013, he participated in meetings of a group called [Tamil Group 1]. They discussed political change in Sri Lanka and worked to support of separate Tamil state. The organisation provided financial support to Tamils in Sri Lanka who are struggling. The group also broadcast on media outlets to raise awareness about the need for a separate Tamil state.
·     Around 2018, when the applicant moved to Sydney, he joined the [Team 1] cricket team. He joined this club because he likes cricket and was exited to play for a club that had [respected his community background]. [Details deleted.]
·     Since being in Australia, the applicant has found a deep appreciation of the fight by the LTTE and he believes their fight was necessary to further the goals of Tamils in Sri Lanka.
·     Each year, the applicant shows his support for those who died by attending Mullivaikkal Remembrance Day and Heroes Day commemorations in May and November. He attends in [a named suburb in] Sydney.
·     He travelled to Canberra to attend a rally pushing for a separate Tamil state and raising awareness for issues faced by Tamils.
·     On social media, he tries to share the issues Tamils are facing in Sri Lanka.
·     His political opinion is the same as the LTTE. He wants a separate Tamil homeland that he can return to peacefully.
·     If the applicant returns to Sri Lanka, he fears intimidation and harassment, violence, arbitrary arrest and detention, cruel and inhuman treatment and death.
·     He will be questioned about his reasons for departing Sri Lanka and the authorities will find out about his father’s ‘involvement’ with the LTTE. He fears mistreatment due to his close familial connection with the LTTE. It will be found that the applicant left Sri Lanka illegally. He fears he will be interrogated, detained and mistreated.

In his statutory declaration, the applicant claims to fear harm due to
·     his race as a Tamil;
·     his actual and imputed political opinion in support of the LTTE and Tamil self-determination;
·     as a failed asylum seeker who departed Sri Lanka illegally; and
·     as a person without Sri Lankan identity documents.
The hearing
The applicant appeared before the Tribunal on 6 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Post-hearing submissions
On 2 May 2022, the applicant provided post-hearing submissions. He provided a copy of the audio recording of his interview with the delegate on 28 February 2013 and the Freedom of Information release notification under which that was provided to his lawyers.
He also provided written submissions which address concerns expressed by the Tribunal during the hearing about evidence given by the applicant about his political opinion and potential inconsistencies in his evidence about certain claimed events in Sri Lanka. In support of these submissions, the applicant provided a new translation of part of the hearing. It is submitted that the interpreter in the Tribunal hearing did not properly interpret some of the applicant’s answers relating to his political opinion which, it is submitted, led to the Tribunal not asking him certain further questions about his political opinion including the significance to him of Velupillai Prabhakaran[5] who was the founder of the LTTE and whose picture the applicant posted pictures of on his [social media] page. The submissions refer back to the evidence provided by the applicant about his political opinion contained in his statutory declaration dated 25 March 2023. The submissions explain the link between the LTTE flag and the [community group], of which the applicant claims to have been a member.
[5] The LTTE was established in 1976 by Velupillai Prabhakaran. See (accessed 28 April 2023)
It is submitted that the applicant’s online posts featuring LTTE iconography demonstrate his actual political opinion as a supporter of the LTTE and would enable him to be identified as such on arrival in Sri Lanka. The submissions refer to country information from a report of the Office of the High Commissioner for Human Rights[6] which refers to 70 people being arrested in Sri Lanka under the Prevention of Terrorism Act (PTA) for sharing social media posts commemorating victims of war and Tamil nationalist iconography. It is submitted that upon application for a travel document for Sri Lanka, the Sri Lankan authorities will find information relating to the applicant’s social media activity and his sharing of LTTE iconography will identify the applicant as a Tamil separatist/supporter of the LTTE by the Sri Lankan authorities and he will be subject to arrest under the PTA. The submissions refer to a report from Human Rights Watch on proposed new anti-terrorism legislation in Sri Lanka which criticises the new laws as being overly broad and vague in terms of what could be categorised as an act of terror against the government. It is submitted that even if the Tribunal finds the applicant is not an actual Tamil separatist or supporter of the LTTE that his online activity will result in him being perceived as such.
[6] Report of the United Nations High Commissioner for Human Rights, Promoting reconciliation, accountability and human rights in Sri Lanka, 25 February 2022 (UNHCHR Report)
The submissions also refer to evidence given by the applicant in the interview with the delegate about his interactions with the LTTE in Sri Lanka which it is submitted demonstrates that he has given consistent evidence about his interactions with the LTTE.
The submissions attach English translations of some of the applicant’s [social media] posts that were provided untranslated to the Tribunal prior to the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, 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.
Nationality
The applicant claims to be a citizen of Sri Lanka and provided to the Department copies of various Sri Lankan identity documents, including his birth certificate and refugee identity card from India. The delegate noted that the applicant had provided consistent information to the Department about his identity and was satisfied that the applicant was using his own identity. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka. The Tribunal finds Sri Lanka is his receiving country for the purpose of assessing his claims for protection. The Tribunal finds that he does not have the right to enter and reside in third country.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal hearing, the applicant gave evidence that he has had legal assistance with this protection visa applications and that everything in his application is true and correct.
During the hearing, the Tribunal discussed with the applicant his family, travel history, employment and education, political views, what he claims happened to him and his family in Sri Lanka and his activities within the Tamil community in Australia. The Tribunal has concerns about the credibility of aspects of the applicant’s evidence relating to claimed events in Sri Lanka including where his family lived while he was in Sri Lanka, what work his father did, why and how many times his father was detained by the LTTE, potential exaggeration of the family’s actual or perceived connection to the LTTE, the circumstances around the applicant being approached by the LTTE and events surrounding the applicant’s and his family’s departure from Sri Lanka. The applicant has given different oral and written evidence over time about these claims. The Tribunal acknowledges that the claimed events in Sri Lanka took place quite a long time ago when the applicant was quite young, given he was only around [age] when he left Sri Lanka, and the Tribunal has taken this into account. The Tribunal has also taken into account the applicant’s post-hearing submissions on this matter. However, the Tribunal considers that some of the details that have changed over time are not adequately explained by these factors and this raises concerns about the applicant’s credibility in relation to these events. Ultimately, however, for the reasons explained below, this does not affect the Tribunal’s decision in this matter.
The Tribunal’s analysis, reasons and findings are set out below.
The applicant’s activities in Australia
Until his pre-hearing submissions and statutory declaration dated 28 March 2023, the applicant had not raised a claim based on his activities in Australia.
As set out above, in his statutory declaration dated 28 March 2023, the applicant expresses his political views on Tamil separatism and refers to activities he has been involved with in Australia. He states that he believes in the need for a separate Tamil homeland. It is his strong desire to live in his home country which is run by his own people. He thinks Tamil people will never have equal rights in Sri Lanka so long as they are a minority and Sinhalese people in authority will always favour their own people which means Tamil people will always be disadvantaged. The language barrier between Sinhalese and Tamils is another problem. Tamils need Tamil authorities who can understand Tamils and their needs. He states that since being in Australia, he has found a deep appreciation of the fight by the LTTE and he believes their fight was necessary to further the goals of Tamils in Sri Lanka. His political opinion is the same as the LTTE and he wants a separate Tamil homeland that he can return to peacefully.
In this statutory declaration, the applicant also refers to the activities he has undertaken in Australia in support of Tamils and Tamil separatism. As set out above, he refers to being involved with an organisation called [Tamil Group 1] in 2012, being a member of [another named Tamil group] in Sydney, attending Mullivaikkal Remembrance Day and Heroes Day commemorations in May and November each year in Sydney, attending a rally in Canberra pushing for a separate Tamil state and raising awareness for issues faced by Tamils and posting pro-Tamil material on social media.
As referred to above, the Tribunal discussed this with the applicant in the hearing. The Tribunal asked the applicant why his political opinion in support of a separate Tamil homeland was something he had not raised in the past. He said it is 10 years since he came to Australia and his activities are against the country (Sri Lanka) and that is why he is telling it now. The Tribunal asked him when he started holding these views and why. He said that he felt it after he came to Australia. When they were in India they were in a camp but after coming to Australia he got the news about Sri Lanka and came to know about these things. The Tribunal asked the applicant to tell it about his beliefs and why he held them. The applicant said that when he was listening to the news and about what happened to his father he had the feeling. The Tribunal asked him what the feeling was. He responded that his family tell him about the problems happening in Sri Lanka and he has Prabhakaran’s picture on his [social media] on [a specified occasion]. The Tribunal asked the applicant to try to explain further why he holds these beliefs and why they are important to him. He responded that he left Sri Lanka when he was [age] and was a refugee in India and then Australia. He decided that he should not go back to his country. Things happened there and there were problems with the army. He started to watch the news and this changed his mind and he started hating his country. The Tribunal asked the applicant why he believed in a separate Tamil homeland. He responded that if they have a separate country it will be easier for Tamils to live there and at the moment the country is with the Sinhalese. The Tribunal asked him if he had any other reasons and he said he did not.
The Tribunal put to the applicant in the hearing its concern that what was in his statutory declaration about his political views was exaggerated compared to the level of detail he had provided in the hearing. The applicant responded that whatever he has told, they (his lawyers) put in there. As noted above, the applicant provided a new transcript of this part of the hearing as part of his post-hearing submissions. The Tribunal is prepared to accept that the new transcript is accurate and has taken this into account in referring to the applicant’s evidence above.
The Tribunal asked the applicant what activities he had been involved with in Australia in support of a separate Tamil state. He said that he was a member of a Tamil [community group]. He has photos on [social media] about the problems in Sri Lanka and has posted items in support of the LTTE. He has attended Martyrs Day[7] commemorations. He posts news that is against Sri Lanka on his [social media] and attends functions that are against the Sri Lankan government. The Tribunal asked him which functions he attends and he said that once a year he attends Martyrs Day in [Sydney] where they display photos, arrange the Tigers flag, light lamps and pray. This is organised by the Tamil Association. When he attends he takes part by praying. The Tribunal asked him whether he was involved in any other Tamil community events apart from Martyrs Day. He said he was not. He said he had attended each year for the past five years.
[7] This is another name for Heroes Day or Great Heroes Day or Maaveerar Naal which is observed on 27 November and is a remembrance day observed by Sri Lankan Tamils to remember the deaths of LTTE fighters who died in the civil war: (accessed 28 April 2023)
He joined the Tamil [community group] in 2018. He wanted to [join that group] because he liked it and its name because of the reference to the LTTE. His friends asked him to join and so he did. He used to [attend activities] every week but he doesn’t [participate as much]. Once a year, there is [an event] in memory of LTTE members who died and he played in that. The [group] helps people who have been in the LTTE who died and their family members by collecting money and sending it to Sri Lanka. The Tribunal asked the applicant whether he had any evidence of his involvement in that. He said he did not and he was only taking part in [limited activities].
In relation to the rally in Canberra which he has provided photos of himself attending, the applicant gave evidence that it was a protest organised by the Tamil community regarding visas for refugees and it took place in 2022. It was organised by the Tamil community but he does not know by whom in particular. He went with friends. He didn’t do anything while he was there. He attended, listened to speeches and came back.
The Tribunal asked the applicant about his social media posts. In the hearing, he showed the Tribunal his [social media] account which is in the name ‘[Name 1]’, which matches the screenshots of [social media] posts he has provided to the Tribunal. The Tribunal pointed out to the applicant that while it could look at the screenshots of the posts he had provided, most of them were in Tamil and so it could not read what they say. The Tribunal asked the interpreter to translate a small selection of the screenshots. The Tribunal also gave the applicant the opportunity to provide translations of the screenshots, or a sample of them, after the hearing if he wanted the Tribunal to be able to consider them. As noted above, the applicant provided some translations in his post-hearing submissions.
In the hearing, the Tribunal put to the applicant that it might appear he does not post particularly often and he doesn’t get a lot of ‘likes’ or ‘shares’ of his posts. The Tribunal asked him why he thinks this activity would be a problem for him with the Sri Lankan authorities if he returned to Sri Lanka. He responded that the problem is that his father had problems in Sri Lanka and if he (the applicant) returns, he will need to tell the authorities his father’s name. The Tribunal repeated its question about why the social media posts are relevant. The applicant responded that he posted them so that others can view them and he thinks it will be a problem for him because it is a public thing.
The Tribunal asked the applicant whether he had been involved in any other activities in Australia which he thinks might be of concern to the Sri Lankan authorities. He said he had not.
The Tribunal asked the applicant whether he would commemorate Martyrs Day if he returned to Sri Lanka. He said he would definitely do this and he will go there and pray. The Tribunal asked him whether he would involve himself in any anti-government or pro-separatist activities if he returned to Sri Lanka. The applicant responded that he would not go to that extent against the government. The Tribunal asked him why not, and he responded that if the issue is relevant to him then he can attend but if not, then why should he attend.
Findings about the applicant’s activities in Australia
Having considered all the evidence about the applicant’s activities in Australia, the Tribunal finds as follows. The Tribunal is prepared to accept that since coming to Australia, the applicant’s understanding of the political situation in Sri Lanka has increased and he now has a different or more informed view of events in Sri Lanka, including the context of events that led to him and his family leaving for India. Even though the applicant was not able to express his views in as much detail or depth in the Tribunal hearing compared to what is contained in his statutory declaration (even taking into account the new transcript provided by the applicant) the Tribunal is prepared to accept that the applicant holds views which are pro-Tamil, against the Sri Lankan government’s treatment of Tamils, and that he appreciates what the LTTE was trying to achieve in terms of helping Tamil people and improving their situation in Sri Lanka. Based on the way the applicant expressed his views in the Tribunal hearing, the Tribunal finds that the applicant is not a strong, vocal advocate for these views but he holds his views genuinely and they are reflected in his actions and activities in Australia.
In his post-hearing submissions, the applicant provided translations of a selection of his social media posts from 2015 to 2019. Based on this, the Tribunal accepts that the language and sentiment of these [social media] posts is pro-Tamil and pro-LTTE and other posts reflect negatively on the Sri Lankan government and its treatment of Tamils. The Tribunal accepts that the applicant has posted iconography on 26 November for several years commemorating Prabhakaran on [a specified occasion] and these posts refer to Prabhakaran as the ‘King’ or the ‘leader’. Based on the images of the posts provided by the applicant, he does not appear to post very regularly, maybe a few times per year, but the Tribunal accepts that he has posted this type of material consistently over a number of years and the subject-matter and tone of the posts is clear.

In terms of the applicant’s activities in Australia, based on the evidence before it, the Tribunal accepts that the applicant was a member of the Tamil [community group] from 2018 to around 2021. The applicant has provided photographs and documents which show him [participating] and some [details of his involvement]. Some of these documents show the logo of the [group]. As noted in the applicant’s post-hearing submissions, the [logo] features [details] which are clearly reminiscent of the LTTE [flag]. The Tribunal accepts that there is clearly an intended link between the name and logo of the [group] and the LTTE. The applicant gave evidence, which the Tribunal accepts, that members of the [group], but not the applicant himself, were involved in raising funds which were remitted to Sri Lanka to assist Tamil families who had lost people in the war. The Tribunal is prepared to accept that the existence of this [group] would be known to the Sri Lankan authorities and that due to the [group’s] name, logo and charitable activities, members of this [group], including the applicant, would be imputed by the Sri Lankan authorities to hold views in support of, or at least sympathetic to, Tamil separatism and/or the LTTE.
The Tribunal accepts that the applicant has attended Martyrs Day or Heroes Day commemorations in Sydney for the last five years as a participant and not an organiser. The Tribunal accepts that when he attends, he prays. The applicant did not refer in the hearing to attending Mullivaikkal Remembrance Day activities despite being given the opportunity to do so, and so the Tribunal does not accept that he attends these events. The Tribunal accepts that the applicant attended a rally in Canberra in 2022 in support of Tamil refugees and that he does not know which organisation or organisations arranged the rally. The Tribunal finds that he did not have an active role at the rally and was just an attendee. The Tribunal notes that the LTTE flag is visible in the background in the photos provided by the applicant of the rally but he is not near the flag or holding a flag or sign. The applicant did not mention or provide further information about his claimed membership in 2012 of an organisation called [Tamil Group 1]. Even if the Tribunal accepts that the applicant was a member of this organisation in 2012 as he claims, the Tribunal finds that it is not an organisation that is listed in the Gazette notice dated 1 August 2022[8] published by the Sri Lankan Ministry of Defence which lists entities and individuals that are as banned for terrorism related activities or providing funding for terrorism.
Consideration of country information and findings about the implications of the applicant’s activities in Australia
[8] (accessed 28 April 2022). The Gazette notice provides a List of Designated Persons which are entities and individuals who are designated as being involved in terrorism-related activities and funding for terrorism.
In the Tribunal hearing, the Tribunal discussed with the applicant relevant country information relating to his claimed activities in Australia. This included country information provided in his pre-hearing submissions.
Country information indicates that the Sri Lankan authorities collect and maintain intelligence on former LTTE members, supporters and other separatists and the authorities may monitor members of the Tamil diaspora returning to Sri Lanka depending on their risk profile.[9] Country information indicates that the focus of the authorities is very much on people who are associated with politically sensitive issues and who have been politically active in supporting Tamil separatism through activities such as fundraising, leadership roles in diaspora groups and actively advocating for Tamil statehood. As explained in KK and RS,[10] when looking at a person’s involvement in these types of events and whether they could be considered to have undertaken a ‘significant role’, the Sri Lankan authorities are likely to be interested in activities such as attendance at public demonstrations, membership of or particular roles within relevant organisations, meaningful fundraising on behalf of relevant organisations, attendance at commemorative events such as Heroes Day, social media activity whether manifested by the posting of original comments or promoting the views of others, political lobbying and the signing of petitions perceived as being critical of the government. This is reflected in the DFAT Report at paragraph 3.57.
[9] DFAT Report 3.41, 3.54 – 3.57
[10] KK and RS at [482]
In KK and RS, the Upper Tribunal states that the extent and duration of the activities engaged in is relevant and any assessment must turn on the facts of the particular case.[11] In assessing whether a person would be considered by the Sri Lankan authorities to have, or be perceived to have, undertaken a ‘significant role’ in Tamil separatism, the Upper Tribunal states at [475] that it is:
satisfied that the [Sri Lankan government’s] objective is to identify those who are an actual or perceived threat to the integrity of the Sri Lankan state by reason of their committed activism in pursuit of the establishment of a separate Tamil state on the island of Sri Lanka. This is the contextual prism through which the term “significant role” should be interpreted.
[11] KK and RS at [486], [493].
In KK and RS, the Upper Tribunal concludes that prior to an individual returning to Sri Lanka on a temporary travel document (TTD), the Sri Lankan authorities are reasonably likely to have obtained information about them on the matters set out above and to have undertaken an assessment.[12] Their assessment of this information will determine whether an individual is placed on a ‘stop’ or ‘watch’ list that will identify them as such when they arrive at Colombo airport.[13] Even though the context of the analysis in KK and RS relates specifically to the process in the United Kingdom, the Tribunal is prepared to accept that the process in Australia would be similar in the sense that some kind of background checks would be undertaken by the Sri Lankan authorities on an individual returning on a TTD, prior to their return. The Tribunal accepts that the applicant does not have a Sri Lankan passport, that he departed Sri Lanka illegally and that if he returned to Sri Lanka in the reasonably foreseeable future, he would be returning on a TTD.
[12] KK and RS at [414]
[13] KK and RS at [423]
Based on the Tribunal’s findings above about the applicant’s activities in Australia, including his membership of the Tamil [community group], his attendance at Martyrs Day commemorations, his attendance at the rally in Canberra where LTTE flags were visible and his social media activity, the Tribunal is prepared to accept that the applicant has been involved in sufficient activities in Australia over an extended period of time that if these activities were known to the Sri Lankan authorities, he would be perceived as having a level of commitment to Tamil separatism or support of the LTTE that may be of concern, albeit at the lower end of the scale. While the Tribunal cannot know for certain whether the Sri Lankan authorities would be aware of the applicant’s activities in Australia, based on the country information it cannot dismiss this possibility as remote. Consistent with the analysis in KK and RS, while the Tribunal does not consider that any one of the activities engaged in by the applicant on its own would necessarily be of sufficient concern to the Sri Lankan authorities, cumulatively, the Tribunal is prepared to accept that due to his actions in Australia the applicant would be considered to have a profile of sufficient concern that he would attract adverse attention on his return to Sri Lanka. The Tribunal considers that his profile may be further heightened by the fact that he left Sri Lanka illegally.
The DFAT Report and KK and RS refer to individuals of concern being placed on a ‘stop’ or ‘watch’ list. The ‘stop’ list includes individuals with a court order or arrest warrant in place and the ‘watch’ list includes individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist activities.[14] The Tribunal finds that based on the applicant’s profile referred to above, there is a real chance he would be place on a watch list. In KK and RS, the Upper Tribunal explains that returnees who arrive at the airport in Colombo and are on a ‘watch’ list will not be detained at the airport, but depending on their profile they may be detained later.[15] Those who are detained would be people who have a profile of sufficiently strong adverse interest to warrant detention and being detained means the individual faces a real risk of being subjected to serious harm.[16] Others are reasonably likely to be monitored by the authorities but they are not generally at risk of detention, and monitoring is generally not considered to constitute persecution.[17]
[14] DFAT Report 3.41
[15] KK and RS at [503] – [511]
[16] KK and RS at [511] – [512]
[17] KK and RS at [516], [519]
The Tribunal has therefore considered whether the applicant faces a real chance of being detained if he returns to Sri Lanka in the reasonably foreseeable future. As referred to above, the applicant gave evidence in the hearing that he would commemorate Martyrs Day if he returned to Sri Lanka by attending and praying. The Tribunal accepts this. He said that he would involve himself in anti-government activities if the issue was relevant to him but otherwise he would not. The Tribunal finds that based on his behaviour in Australia, the applicant would not involve himself in anti-government or pro-Tamil separatist activities in Sri Lanka as an activist or leader, but he may involve himself as an attendee. The Tribunal did not specifically ask the applicant whether he would continue to share pro-Tamil or pro-LTTE material via [social media] if he returned to Sri Lanka, but the Tribunal accepts that he would continue to do this because it is consistent with his political views and his conduct in Australia to date. The Tribunal is also prepared to find that in the applicant’s case, if he stopped doing this in Sri Lanka it would be due to fear rather than because he had abandoned his political views.
The UNHCHR Report which is referred to in the applicant’s post-hearing submissions, refers at paragraph 45 to reports that at least 70 people have been arrested under the PTA for sharing social media posts commemorating victims of the war that included LTTE images or Tamil nationalist iconography. It also refers to a directive issued by the Sri Lankan Inspector General of Police dated 23 October 2021 providing guidance on restricting the use of the PTA and exercising greater discretion in evaluating cases such as possession of pictures. The DFAT Report refers to a Tamil man being arrested in April 2021 for allegedly sharing a photo of Prabhakaran.[18] While the country information does not provide further detail on what extent of sharing social media posts might attract the adverse attention of the authorities, the Tribunal accepts that it continues to be a sensitive issue.
[18] DFAT Report 4.23
The Tribunal is prepared to find that the combination of the applicant’s profile that the Tribunal has found would be sufficient to have him placed on the watch list, along with the types of activities the Tribunal accepts he would engage in on return to Sri Lanka, including sharing social media posts containing LTTE images or Tamil nationalist iconography and attending Martyrs Day commemorations, would be sufficient to place him at risk of detention and questioning by the authorities in the reasonably foreseeable future after his return to Sri Lanka. Country information about the PTA indicates that it is a piece of legislation with a very specific purpose and not part of the ordinary criminal law.[19] The DFAT Report states that the PTA has been used against Tamils,[20] but the UNHCHR Report indicates that very few people remain detained under that Act[21] which suggests that relatively speaking, its use is not widespread. The DFAT Report states that it is not aware of returnees from Australia to Sri Lanka being charged under the PTA.[22] The Tribunal does not accept that the applicant faces a real chance of detention under the PTA, but for the reasons explained above, it finds that based on his profile he would face a real chance of being detained by the authorities for questioning. While the Tribunal does not consider the applicant’s chance of detention to be high, it finds that the chance is more than remote which means that it is a real chance.
[19] DFAT Report 4.20 – 4.26.
[20] DFAT Report 4.23
[21] UNHCHR Report at paragraph 43; DFAT Report 4.23 – 4.24.
[22] DFAT Report 4.24
Given the Tribunal accepts the applicant faces a real chance of being detained, it follows from this that based on country information about the treatment of detainees by Sri Lankan authorities, including the police and military officers, the Tribunal also accepts that by being detained the applicant would face a real chance of serious harm while in detention, even if his detention is only relatively brief.[23]
[23] KK and RS at [510], [515]; US Department of State Country Reports on Human Rights Sri Lanka 2022 ; UK Home Office Report 2022
Does the applicant meet the refugee criterion?
The applicant claims that he fears serious harm if he returns to Sri Lanka for various reasons including his actual and imputed political opinion in support of Tamil separatism and the LTTE. For the reasons explained above, the Tribunal is satisfied that the applicant fears being persecuted for reason of his actual and imputed political opinion[24] and there is a real chance that he would be persecuted for this reason if he returned to Sri Lanka in the reasonably foreseeable future. For the reasons explained above, based on the country information and the applicant’s profile, the Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka.
[24] Section 5J(1)(a)
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his actual or imputed political opinion, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or significant ill-treatment of the applicant.
In light of the country information referred to above, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Sri Lankan State because the Sri Lankan State is the agent of persecution in this case and so the Sri Lankan State is not willing and able to offer such protection. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant in Sri Lanka.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Sri Lanka because a modification would require him to alter or conceal his true political beliefs. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his political opinion in Sri Lanka.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rachel Da Costa
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.
…

[2023] AATA 2423

8 May 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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Appeal