1715205 (Refugee)

[2022] AATA 2773

1715205 (Refugee) [2022] AATA 2773 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBER:  1715205

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Amanda Paxton

DATE:15 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2022 at 11:34am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – imputed political opinion – imputed with an LTTE political profile – race – male of Tamil ethnicity – a Tamil male from the north of Sri Lanka – membership of the particular social groups – failed asylum seeker/returnee from the West – people who have fled Sri Lanka illegally – applicant does not have an LTTE profile or any profile such as to attract attention of the authorities –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5,36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant who claims to be a citizen of Sri Lanka arrived in Australia [in] December 2011 by boat vessel.

2. The applicant applied for the XE-790 Safe Haven Enterprise visa (SHEV), on 22 October 2015. On 28 June 2017 the delegate refused to grant the visa as the delegate was not satisfied that the applicant would suffer serious or significant harm on his return to Sri Lanka and therefore did not meet the requirements for that visa. The applicant sought review of the delegate’s decision to this Tribunal, attaching a copy of the Department of Home Affairs’ (the Department) decision record to the review application on 14 July 2017.

3. The applicant appeared before the Tribunal on Thursday 17 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) language. The applicant was represented at the hearing.

5. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see well. The Tribunal was able to interact with the applicant, his representative and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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–5LA, which are extracted in the attachment to this decision.

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicant’s identity and country of reference

13. The applicant advised the Department that he was born on [date] in [City 1], in the Northern Province of Sri Lanka and acquired Sri Lankan citizenship at birth.[1]

    [1] [File number], pp. 160–213.

14. At his Protection Obligations Evaluation (POE) interview he submitted copies of several identity documents including his national identity card, his birth certificate, educational qualifications and employment references.[2]

    [2] AAT 1715205, Doc Id 3558856, 14 July 2017.

15. The documents provided by the applicant are consistent with his evidence to the Department and the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds he is a citizen of Sri Lanka and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.

    Background and migration history

16. The applicant declared the following in his entry interview with the Department, his Form 790B in connection with his SHEV application,[3] and his Statutory Declaration in connection with this review application dated 9 March 2022:[4]

    ·     He is a [age]-year-old man born in [City 1], Northern Province, Sri Lanka. His race is Tamil. His religion is Hindu. The applicant checked ‘no’ to being a member of any political party or group.[5]

    ·     He married on [date] May 2015 and he has two children. His wife and daughters are Australian citizens. The applicant’s brother [died] of natural causes. His parents and sister reside in Sri Lanka.[6] His remaining brother lives in Australia and his immigration status is unresolved.

    ·     The applicant departed his home country of Sri Lanka on [date] November 2008 and flew to [Country 1] and from there to [Country 2].

    ·     The applicant made two attempts to come to Australia before a third attempt was successful. On his first attempt, in October 2009, the boat on which he was a passenger was intercepted by the [Country 3] Navy en route to Australia. This boat was taken to dock in [Port 1], [Country 3]. A number of those on board the boat, including the applicant, refused to leave the boat, and along with others the applicant remained on board for six months. At that time, he agreed to leave the boat and was placed in a refugee camp until he departed, taking a taxi to [City 2]. He stayed in [City 2] for two months before returning to [Country 2] where he remained for nine months until March 2011. From there he went to [Country 4] then back to [Country 2] before leaving for [Country 3] in September 2011. [In] November 2011 he left [Country 3] for Australia.[7]

    ·     The applicant provided documentation indicating that he registered as an asylum seeker with the UNHCR in [Country 2] and [Country 3].[8] A letter from the UNHCR officer [informs] that the applicant’s refugee claim is unsuccessful. He appealed the decision on 2 December 2010 and remained registered with the UNHCR office in both countries.[9]

    [3] [File number], AAT 1715202, Doc Id. 9839034.

    [4] AAT 1715205, Doc Id 9529713, 11 March 2022.

    [5] [File number], pp. 160–213.

    [6] AAT 1715205, Doc Id 9529713, 11 March 2022.

    [7] Ibid.

    [8] Ibid.

    [9] [File number], pp. 160–213.

17. The following is a summary of the applicant’s migration history since his arrival in Australia contained in the delegate’s decision provided to the Tribunal by the applicant:[10]

    ·     The applicant arrived in Australia on[date] December 2011 by a vessel [that] was intercepted by Australian authorities in Australian territorial waters. The applicant and other passengers were taken to Christmas Island. The applicant travelled to Australia without a valid travel document.[11]

    ·     The applicant made a request for a Protection Obligations Determination (POD) on 14 December 2011. The POD was refused on 14 March 2012. However, the decision was automatically referred for an Independent Protection Assessment (IPA).[12]

    ·     On 30 January 2012 the applicant attended an interview with the Department at [an] Immigration Detention Centre.[13]

    ·     On 12 November 2012 the IPA found the applicant to be a refugee and accepted his claims.[14]

    ·     On 31 August 2015, the Minister lifted the bar at s 46A to allow for the applicant to lodge a valid application for a visa.[15]

    ·     The applicant applied for the XE-790 Safe Haven Enterprise visa (SHEV) on 22 October 2015.

    ·     On 6 June 2017 the applicant was interviewed in relation to his protection claims. The applicant’s visa application was refused by the delegate on 28 June 2017.

    [10] AAT 1715205, Doc Id 3558856, 14 July 2017.

    [11] [File number], pp. 160–213.

    [12] Ibid.

    [13] Ibid.

    [14] Ibid.

    [15] Ibid.

    Claims for protection

18. The applicant has provided essentially the same claims for protection across his entry interview, application for a POD, his SHEV application[16] and his Statutory Declaration in respect of this review.

    [16] AAT 1715205, Doc Id 9829035 & 9829037, 31 May 2022.

19. His claims are summarised as follows:

    ·     In [year] an area of the school the applicant was attending was occupied by the army and a checkpoint was put in place nearby. The students had to walk one kilometre to school. The students asked the army to leave the school and when they did not the students went on strike against the occupation of the school. The army responded with tear gas and fired into the air. Many students were injured running away and the local villagers joined the students in fighting the army.

    ·     The applicant finished school in [year] and in 2006, a period of ceasefire, he was employed as a [Occupation 1] with [Employer 1] in [City 1] for one year.

    ·     In 2006 the applicant along with many others was taken into custody because he participated in the strikes. They tied his hands behind his back and brutally beat him. After a few hours he was released when his parents intervened. The army kept his ID and he was told to attend the camp regularly. At that time, many of the strikers were killed or abducted by the army.

    ·     In 2007 he kept a low profile at his family farm.

    ·     In September 2007 [Employer 2] offered him the position of [Occupation 1] in [City 1] helping with [Project 1], assisting the villagers. The Sri Lankan Army (SLA) watched his movements which scared him. After three months he left the [employer] and in February 2008 he moved to Colombo.

    ·     In Colombo the army took him into custody at the CID [camp]. He was released after a few hours of being questioned where he was accused of supporting the LTTE. In September and October 2008, the army came to his house in Colombo and questioned him; he became very angry and decided to leave Sri Lanka.

    ·     The applicant flew to [Country 1] on [date] November 2008. He travelled to [Country 2] where he boarded a boat which was intercepted by the [Country 3] Navy and taken to [Port 1], where he was detained on board with over [number] asylum seekers. Those remaining were eventually allowed onshore and from there he escaped when he heard that the authorities wanted to send him to jail.

    ·     When the ship was intercepted in [Country 3] the story was reported in international media and the Sri Lankan government said that all the Tamils in that boat were LTTE affiliates. A couple of people from the boat who returned to Sri Lanka were taken to [a] Camp and beaten. He will be imputed with pro-LTTE sentiment because he was on this boat.

    ·     He eventually went back to [Country 2] and his mother told him that the army was making enquiries about him. The applicant went to [Country 4] before returning to [Country 2] from where he left for Australia on [date] November 2011.

    ·     He fears the SLA and the police as he will be accused of supporting the LTTE because he was involved in the student protest, is a Tamil male from the north of Sri Lanka, has resided abroad for a prolonged period of time and claimed asylum. He will be at risk of serious harm due to his race, area of origin and previous issues with the authorities, and he will be considered an LTTE affiliate.

20. The applicant’s representative provided a post-interview submission dated 20 June 2017, addressing the credibility concerns put to the applicant during the interview. The submission contains various country of origin information about the situation of Tamils and people who are being imputed as LTTE supporters in Sri Lanka.

21. The applicant provided the following documents to the Department in support of his application:

    ·     Submission in support of application from Florin Burhala Lawyers.[17]

    [17] [File number], pp. 234–256.

    ·     Letters from UNHCR [Country 2] dated 23 June 2011, 4 January 2011 and 25 November 2010.[18]

    [18] [File number], pp. 223–228

    ·     Statutory Declaration from applicant dated 26 January 2012.[19]

    [19] [File number], pp. 221–222.

    ·     Signed form agreeing to the release and sharing of information to UNHCR dated 4 February 2012.[20]

    [20] [File number], pp. 219–220.

    ·     Applicant’s statement of claims.[21]

    ·     Applicant’s application to POD.[22]

    ·     Letter to immigration department in [Country 5].[23]

    ·     Evidentiary photos.[24]

    ·     Untranslated submissions.[25]

    ·     [Employer 2] appointment as [Occupation 2] letter dated 6 August 2007.[26]

    ·     Training certificate to applicant from [Employer 1].[27]

    ·     Letter from [Employer 1].[28]

    ·     Letter from applicant’s school dated 23 March [year].[29]

    ·     Numerous newspaper and media articles.[30]

    [21] [File number], pp. 214–217.

    [22] [File number], pp. 160–213.

    [23] [File number], p. 159.

    [24] [File number], pp. 147–158.

    [25] [File number], pp. 130–146.

    [26] [File number], p. 125.

    [27] [File number], p. 122.

    [28] [File number], p. 121.

    [29] [File number], p. 117.

    [30] [File number], pp. 31–112.

22. On 11 March 2022 the applicant via his representative provided the following documents in support of his application for review to the Tribunal:

    ·     A legal submission in support of an application for Administrative Appeals Tribunal (Migration and Refugee Division) review dated 10 March 2022.[31]

    ·     Statutory Declaration sworn by the applicant on 9 March 2022.[32]

    ·     Birth certificates for the applicant’s [children].[33]

    [31] AAT 1715205, Doc Id. 9529713, 11 March 2022.

    [32] Ibid.

    [33] Ibid.

23. In his Statutory Declaration of 9 March 2022, the applicant put forward the claim that he has attended three Hero’s Day commemoration ceremonies in Australia and that he has posted on his social media account about issues faced by Tamils in Sri Lanka. He states that he is concerned that his involvement in the Tamil diaspora will place him at risk of harm in Sri Lanka.[34]

    [34] AAT 1715205, Doc Id. 9529713, 11 March 2022.

24. In this statement, the applicant declares that he continues to fear harm upon return to Sri Lanka because Tamils are continually being harassed, persecuted and harmed in Sri Lanka. He claims the Sri Lankan authorities are worried about the LTTE or an alternate Tamil movement will rise against them and that they therefore use the Prevention of Terrorism Act (PTA) to target those who they believe are LTTE affiliates. He repeats his earlier claim that he fears that if he is returned he will be detained and interrogated by the Sri Lankan authorities given his past dealings with them, his time abroad, activities in Australia, his race, age and area of origin.

25. The applicant also states that his wife cannot return to Sri Lanka as she obtained protection in Australia.

    Relevant country information

26. The Tribunal has had regard to the DFAT Country Information Report on Sri Lanka, dated 23 December 2021.[35]

    [35] DFAT Country Information Report on Sri Lanka, 23 December 2021.

27. The Tribunal has considered the applicant’s representative’s submission that the DFAT report should not be relied upon in the assessment of the applicant’s matter. In making this submission, the applicant’s representative refers to the UK Upper Tribunal decision of May 2021 and states the UK Upper Tribunal called for this report to be retracted because it was based on unreliable information. The applicant’s representative observes that the UK Upper Tribunal noted that in the DFAT report none of the sources are identified and there is no explanation as to how the information from these sources was obtained.[36]

    [36] ‘KK RS (Anonymity Direction Made) And Secretary Of State For The Home Department’, Upper Tribunal (Immigration and Asylum Chamber), 27 May 2021, 20210601113225, 17, [38].

28. In oral submission at hearing and in post-hearing submission,[37] the applicant’s representative also put the view that in assessing country information from DFAT, it should be considered that in the last two years many foreign diplomats and officials returned to Australia rather than worked abroad. Referencing the US Department of State: 2021 Country Report on Human Rights Practices: Sri Lanka, 12 April 2022,[38] it was submitted that current issues cannot be fully understood by the international community as given the pandemic it is likely that individuals on the ground in Sri Lanka would have had to adhere to COVID-19 restrictions, which is likely to have impeded their ability to monitor the situation in Sri Lanka and to conduct on-the-ground discussions throughout the country, and particularly investigating the situation of Tamils in the north. It is further submitted that there are reports of harassment of journalists and activists which may limit accurate reporting of the situation for Tamils in Sri Lanka.

    [37] AAT 1715205, Doc Id. 9798283, 30 May 2022.

    [38] AAT 1715205, Doc Id.  9577331, 24 March 2022; and AAT 1715205, Doc Id 9771138; USDOS – US Department of State: 2021 Country Report on Human Rights Practices: Sri Lanka, 12 April 2022, type="1">

29. As noted above, Ministerial Direction No. 84 requires that a decision maker takes into account DFAT’s assessment where relevant in making their decision, but does not preclude the decision maker from considering other relevant information about the country. The Tribunal notes that DFAT’s report is informed by DFAT’s on-the-ground knowledge and discussions with a range of sources, including in Sri Lanka. It takes into account relevant and credible open source reports, including those produced by: the US Department of State, the UK Home Office, the World Bank and the International Monetary Fund; relevant UN agencies, including the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations High Commissioner for Refugees (UNHCR), the United Nations Development Programme (UNDP), the United Nations Population Fund (UNFPA) and the International Organization for Migration (IOM); leading human rights organisations such as Human Rights Watch, Amnesty International and Freedom House; Sri Lankan non-governmental organisations (NGOs); and reputable news organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.

30. Considering the wide range of sources used including local sources consulted in the preparation of this report, the Tribunal does not accept the contention that DFAT’s assessments are not accurate, reliable or soundly based. The Tribunal does not accept that DFAT assessments have been impeded by COVID-19 restrictions such that they are not soundly based. In making this decision the Tribunal has taken into account the extensive country information provided by the applicant but gives weight to DFAT’s independent assessments.

    ASSESSMENT OF CLAIMS AND FINDINGS

31. The applicant fears that he would be subjected to serious harm by the authorities upon return to Sri Lanka. He states he is fearful that he would either be killed or subjected to torture and serious harm. The applicant fears harm based on criteria in s 5J(1)(a) of the Act, namely, his “race” (Tamil), “membership of a particular social group” as a failed asylum seeker/returnee from the West, and “political opinion” (imputed pro-LTTE supporter). The Tribunal has considered his claims separately and cumulatively.

    Does the applicant have a well-founded fear of persecution?

32. On the documentation before it and the consistent evidence of the applicant, the Tribunal finds the applicant is a [age]-year-old man born in [City 1], Northern Province, Sri Lanka, that his race is Tamil, and his religion is Hindu. The Tribunal further finds the applicant’s brother [died] of natural causes, and that his parents and sister reside in Sri Lanka, and one brother currently resides in Australia.

33. On the same basis, the Tribunal finds that the applicant married on [date] May 2015 and he has two children. The Tribunal accepts the applicant’s explanation to the Tribunal that he first met his wife on the boat that was intercepted by [Country 3] authorities and taken to [Port 1] (discussed below) but that she had opted to disembark and was later resettled on a humanitarian visa in Australia. The Tribunal accepts the applicant’s evidence that in Australia he has been working [continuously].

    Imputed political opinion

34. The applicant states that he fears harm if returned to Sri Lanka due to his imputed political opinion which is multifaceted and stems from the previous issues he faced in Sri Lanka, his involvement in school protests, his advocacy work with aid organisations in Sri Lanka, the time he spent aboard the [boat in Port 1], and because he has remained abroad for a prolonged period, his race and area of origin. It is submitted that both individually and cumulatively, the applicant will be imputed with pro-LTTE sentiment and will be at risk of being imprisoned, interrogated and harmed upon return to Sri Lanka. The Tribunal has considered these issues below, individually and cumulatively, and finds that there is not a real chance the applicant would suffer persecution involving serious harm due to an imputed pro-LTTE political opinion.

    [College 1] protests

35. The Tribunal asked the applicant about his experiences at school in [City 1], at  time of civil conflict between the LTTE and the Sri Lankan authorities. He described doing his A levels at [College 1] in [year] when the SLA occupied part of the school. He described the situation where students had to go through checkpoints and body searches before being permitted to go inside the college, leading the Student Union to demand that the army leave the school. The army refused and in the student protests that followed, the army used tear gas to disperse the protesters. According to the applicant, the army took video of the protests. The applicant stated he could not remember if he was part of the Student Union, but he was a class monitor and a member of the Hindu Union. He stated that he joined the protest and helped gather students onto busses to attend the protest.

36. The Tribunal notes the detail and general consistency of the applicant’s account of protests at his school when the army refused to vacate the school across his various applications. On this basis the Tribunal accepts he participated in protest activity. However, on his evidence at hearing and at his Departmental interview set out in the delegate’s decision record provided to the Tribunal by the applicant, where he confirmed he was not a student organiser, the Tribunal does not accept that he was a leader or organiser of this protest.

37. The Tribunal accepts the applicant’s consistent evidence that after the protests he continued school and graduated. The Tribunal accepts the applicant’s evidence, consistent with his past evidence, that after school he helped his father on the farm. The applicant stated that this was peace time, but that when the peace was broken after 2006, the army arrested and shot some students who had been involved in the school protest. On the basis of media reports provided to the Department, the Tribunal accepts that this occurred.[39] The Tribunal further accepts the applicant’s evidence at hearing that in 2006, he and other students were detained for some hours and questioned by the army about protest leaders and whether the LTTE was involved. The Tribunal accepts the applicant’s consistent evidence that he was mistreated during this questioning.

    [39] [File number], p. 73.

38. In considering whether this questioning indicates that the Sri Lankan authorities considered him to have an LTTE profile of interest to the security forces, the Tribunal takes into account the applicant’s evidence that he was released later in the day to his parents who had accompanied the students, and that he was not questioned or detained further about the school protest incident or LTTE involvement in the protests. The Tribunal accepts the consistent evidence of the applicant that the SLA kept the applicant’s identity card and requested he report to them regularly. The Tribunal notes that he remained another year working with his father on the farm with no further incidents with the army. The Tribunal considers that had the applicant been regarded as an LTTE affiliate or been imputed with a pro-LTTE political profile or any other profile of security interest to the authorities that he would have been further questioned in the period of more than one year he remained in [City 1]. Considering the evidence before it, the Tribunal finds that the applicant was not of adverse interest to the Sri Lankan authorities due to a pro-LTTE political profile arising from his participation in [year] protests at [College 1].

    The applicant’s work with international aid agencies

39. The Tribunal accepts the applicant’s consistent evidence that in 2005 after he completed school he worked as a [Occupation 1] for [Employer 1]. At hearing, the applicant confirmed that in 2007 he was appointed as a [Occupation 1] with [Employer 2] and was involved in [Project 1]. At hearing, when the applicant was invited to discuss the nature of these roles, he referred to practical assistance such as going to villages and helping widows. He did not indicate that these involved advocacy work. On the basis of the evidence of the applicant at hearing, the Tribunal does not accept the applicant was involved in advocacy work with these agencies. The applicant provided no evidence that he was monitored, harassed or questioned about his work or that he was unable to fulfil these roles for any reason. The Tribunal considers that if the applicant was of interest to the authorities for reason of suspicion of LTTE links or anti-government political opinion arising from his work, he would, at minimum have been questioned about these matters in this period. The Tribunal does not accept that his role as a [Occupation 1] with these agencies conferred on him a political profile of concern to the Sri Lankan authorities. The Tribunal does not accept that the applicant did not feel safe because the SLA was monitoring his work in sensitive roles as claimed.

40. At hearing, the Tribunal sought information about the applicant’s move from [City 1] to Colombo in 2007. Consistent with his previous evidence, the applicant said that at that time, the authorities were giving people clearance to move from [City 1] and his father applied with the applicant included in his application. When the Tribunal suggested that clearance to travel to Colombo suggested he was of no interest to the Sri Lankan security authorities, the applicant said that the clearance was for travel to [a named city] and from there they were permitted to travel to Colombo. The Tribunal asked for more detail noting that evidence provided to the Department indicated that the SLA was aware that he intended to go on to Colombo.[40] He said he did not know the reason for the clearance, and he explained that he was quite young at the time and that he does not remember the details. He stated he recalled passing through about 15 checkpoints on the way to Colombo which included bag and body checks, and they were permitted to pass. In these circumstances, the Tribunal concludes the applicant was permitted by the authorities to move from [City 1] to Colombo. The Tribunal considers that the applicant would have been denied permission to travel, or would have encountered difficulties at checkpoints, had he been of any security concern to the Sri Lankan authorities as an LTTE affiliate at the time of his travel in 2007.

    [40] [File number], p. 108

41. Considering the evidence before it, the Tribunal finds that the applicant was not of adverse interest to the Sri Lankan authorities because he was imputed with an anti-government or pro-LTTE political profile because he was working with international aid agencies or for any other reason at the time he departed [City 1] in 2007.

    Questioning by the CID in Colombo

42. The applicant gave evidence at the Tribunal hearing that in Colombo, he undertook an English course and worked in a shop. The Tribunal made considerable enquiry about this period but the applicant did not provide clear or direct evidence. After some questions, the Tribunal deduced that on one occasion the applicant was taken to a camp by the CID and questioned about LTTE support before being released to his father. He stated that the CID told him he must remain in the place he was staying, but it was difficult to stay there because his room was searched, and he was harassed. When the Tribunal sought more detail about these claimed events, he said that police used to come and harass people at night. The applicant did not respond directly to the Tribunal’s repeated enquiry about any other occasions when he was questioned, but said that “they did not contact them, they were just following them through some means, there was not direct contact.” While invited to provide more detail, the applicant’s evidence was vague and general and it was not specific to him, leading the Tribunal to have serious doubts that the applicant had any further contact with the CID after this incident. The Tribunal acknowledges that these events occurred a number of years ago, but the Tribunal considers that had the applicant been detained or questioned a second time or had further contact with the CID, he would be able to recall this with some clarity. For these reasons the Tribunal finds the CID did not contact him, follow him or harass him, again. On the basis of the applicant’s evidence at hearing, the Tribunal finds that the applicant was questioned by the CID on one occasion in Colombo about possible LTTE links but that he had been released after a few hours and had no further contact with the authorities. The Tribunal considers that had the authorities any ongoing interest in the applicant because he was considered to be an LTTE affiliate, he would have been further questioned and detained.

43. On the evidence before it, the Tribunal does not accept the applicant was considered to be an LTTE affiliate, or that the authorities had an ongoing or genuine interest in the applicant at that time.

    The applicant’s departure from Sri Lanka

44. In considering whether the applicant would suffer persecution involving serious harm on return to Sri Lanka because he is imputed with an LTTE political profile of interest to the authorities, the Tribunal has considered the manner of the applicant’s departure from Sri Lanka.

45. In response to enquiry about the applicant’s departure from Sri Lanka in 2008, he told the Tribunal that he found an agent who organised passports and made arrangements to send people to [Country 2] and he asked the agent to do this for him. He said he went to the airport with the agent where the CID inspected his passport and ticket. His agent did the talking and he was waved through. As discussed with the applicant, the Tribunal has considered country information relevant to the period that the use of agents to lodge documentation and obtain passports was commonplace in Sri Lanka, and that use of an agent did not mean that his departure was illegal or that usual checks have not occurred.[41] The applicant agreed that many leave Sri Lanka with the assistance of agents and stated that it is possible to get anything done if you pay.

    [41] International Migration Outlook – Sri Lanka 2008, Institute of Policy Studies of Sri Lanka, May 2009.

46. The Tribunal sought more information to understand what the agent had done for the applicant. He stated that he was not sure what the agent did for him as everything was organised by his father. He also told the Tribunal that he doesn’t know what happened, or whether his departure was legal or not. The Tribunal has considered the applicant’s very limited evidence in relation to departure processes and is not satisfied that it is plausible that as an adult of [age], he would be unaware whether normal departure processes were or were not to be undertaken. The Tribunal found the applicant’s evidence in this respect lacked credibility. The Tribunal accepts the applicant’s father paid an agent to assist him to obtain a passport in his own identity and depart Sri Lanka. However, on the evidence before it, the Tribunal does not accept that the agent provided anything other than lawful service for the applicant. On the evidence before it, the Tribunal is satisfied the applicant went through normal departure channels using his own passport without encountering any difficulties or causing the authorities any concerns as he did so. On the evidence before it, the Tribunal is also satisfied that the applicant underwent common departure processes and departed legally in his own identity, that this will have been recorded and that he will not be subject to any penalties for illegal departure from Sri Lanka.

47. The Tribunal put to the applicant that had he been of interest to the authorities for any reason he would have been identified and stopped as he departed. The Tribunal sought the applicant’s response to country information indicating that systems were in place to identify people of interest to the authorities applying for a passport and when exiting Sri Lanka at the airport.[42] As discussed with the applicant at hearing, DFAT country information indicates that Sri Lanka had thorough electronic ‘stop’ and ‘watch’ lists of former LTTE members, supporters and other separatists and that individuals on these lists would not be able to avoid adverse attention from security forces.[43] In response, the applicant said that he did not know why they let him go like that, perhaps it was the work of God. The Tribunal has considered this suggestion but does not find it a persuasive explanation to account for why the authorities would not stop the applicant if he had been of interest to them. Given the applicant encountered no difficulties on departure from Colombo and taking into account relevant country information, the Tribunal finds that he was allowed to depart Sri Lanka unimpeded because he was not suspected of having any potentially significant profile as an LTTE supporter or affiliate.

    [42] Report of information gathering visit to Colombo, Sri Lanka, 23–29 August 2009, UK Home Office, August 2009.

    [43] DFAT Country Information Report on Sri Lanka, 31 July 2013.

48. The Tribunal has considered the Sri Lankan authorities’ interest in the applicant cumulatively, noting that he was questioned by the SLA in 2006 in [City 1] about LTTE involvement in the school protests of [year] and that he was questioned by the CID about LTTE links in Colombo in 2008. In both cases he was released after questioning, and not contacted further. The Tribunal considers that in the circumstances of the civil war in Sri Lanka, these incidents do not indicate a significant level of interest in the applicant by the Sri Lankan authorities. The Tribunal has considered the totality of the applicant’s evidence and the country information before it and finds the applicant was not of interest to the Sri Lankan authorities as an LTTE affiliate on departure from Sri Lanka in 2008.

    The [Port 1 boat]

49. In considering whether the applicant would suffer persecution involving serious harm on return to Sri Lanka because he is imputed with an LTTE political profile of interest to the authorities, the Tribunal has considered the applicant’s claim that he will be imputed with a pro-LTTE profile because he was aboard the [Port 1 boat].

50. On the consistent evidence of the applicant across his applications, the Tribunal accepts that he transited [Country 1] and went to [Country 2] where, he told the Tribunal, his father had relatives. On the same basis, the Tribunal accepts that in 2009 the applicant attempted to come to Australia on a boat with [number] others. This boat, later known as the [Port 1 boat], was intercepted by the [Country 3] authorities and taken to the port of [Port 1] in [Country 3]. According to the applicant, a group of people on board wanted Australia to promise that they would be taken to Australia before they would disembark. This promise was not forthcoming, and the [Country 3] authorities would not permit them to leave the boat on these terms. This led to a stand-off between the people on board and the [Country 3] authorities which lasted six months. The applicant said this was a mistake on his part because the people who left the boat voluntarily, including the person who later became his wife, were all settled by other countries. According to the applicant, finally, [Country 3] Immigration informed those remaining on the boat that if they chose to disembark there would be something good for them but if they refused, they would be taken out by force. The applicant stated that he hoped they too would be resettled but they were taken to a camp where they registered as asylum seekers with UNHCR. He remained in [Country 3] for about six months before leaving the camp and going back to [Country 2] and working with an agent to come to Australia. Taking into account media reports of the period discussed with the applicant,[44] and the consistent, detailed account of the applicant, the Tribunal accepts that the applicant was one of a large number, over [number], remaining on the [Port 1 boat] in this incident.

    [44][source information deleted]

1. The Tribunal has considered the applicant’s evidence that [Country 3] Immigration recorded the names and photos of people aboard the [Port 1 boat], and the Tribunal accepts that this was the case given they were all processed by [Country 3] Immigration once they went ashore. On the basis of information from the Global Tamil Forum discussed in the delegate’s decision record provided to the Tribunal by the applicant, the Tribunal also accepts that the Sri Lankan authorities were aware of the identities of those on the boat. In this respect the Tribunal accepts that the army may have made enquiries about him with his mother to establish his identity.

2. The Tribunal has considered whether the applicant will be imputed with a profile as an LTTE affiliate or cadre by the Sri Lankan authorities because he was one of those who refused to leave the [Port 1 boat]. In support of this claim, the applicant stated that media reports indicate that the Sri Lankan government announced that all on the boat were LTTE people. The Tribunal put to the applicant that its research indicated that this was not the case. As discussed with the applicant at hearing, while the Tribunal accepts that there was international publicity about this incident, media reports indicated that the Sri Lankan authorities said they had identified up to three people aboard as former LTTE members/Tamil Tigers.[45] Media articles do not indicate Sri Lankan authorities considered everyone on the boat to be former LTTE members. On the material before it, the Tribunal finds the evidence does not support the conclusion that the applicant was one of the three Tamil Tigers identified, and notes that he was treated the same as all the others on the boat when they disembarked.

   [45][information deleted]

3. In his Statutory Declaration of 1 October 2015, the applicant claims that other individuals who were on the boat and have been returned to Sri Lanka, were detained and tortured. At hearing the applicant stated that he had heard there was a person from the [Port 1 boat] who was harassed severely but he was unsure about the details. The Tribunal considered the applicant’s evidence to be vague and lacking any detail that may indicate relevance to the applicant’s circumstances. Accordingly, the Tribunal does not give weight to this information when considering the applicant’s claims.

4. The Tribunal has considered the totality of the material before it and is satisfied that it does not support a conclusion that all people travelling on this boat will be imputed with an LTTE profile simply because they travelled on this boat and remained on the boat in [Port 1]. The Tribunal finds that the applicant’s presence on the [Port 1 boat] does not confer on him an LTTE political profile.

   Political activities in Australia

5. In considering whether the applicant would suffer persecution involving serious harm on return to Sri Lanka because he is imputed with an LTTE political profile of interest to the authorities, the Tribunal has considered the applicant’s claim that he will be imputed with a pro-LTTE profile because he attended three Hero’s Day commemoration ceremonies in Australia.

6. In response to the Tribunal’s enquiry at hearing, the applicant stated he had attended Hero’s Day celebrations in [location] and Black Tiger Day. He stated that he did not know who organised these events and stated that he is not part of any Tamil organisation. The applicant gave oral evidence that the last time he attended such an event was before he married in 2015. He stated that he is concerned that his involvement in the Tamil diaspora will place him at risk of harm in Sri Lanka, as he may be further imputed with LTTE sentiment, as they do not know who is attending these events and they (representatives of the Sri Lankan authorities) can take photos so they may have the identities of people attending.

7. On the consistent evidence of the applicant, the Tribunal is satisfied he attended some Tamil events in Melbourne before 2015. The Tribunal noted that the applicant’s knowledge of these events, such as the organisation supporting the events, was minimal and by his own evidence his participation was very limited, and now quite dated being around seven years ago. The Tribunal considers it to be purely speculative that the applicant’s attendance at these ceremonies will have been noted by the Sri Lankan authorities but in the event that it was, the Tribunal considered the applicant’s involvement would be found to have been at a very low level at the time and since 2015 has been nil, and as such would not be such that he would be imputed with an anti-government political opinion by the authorities.

8. As discussed with the applicant at hearing, DFAT assesses that Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that the following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.[46] Taking into account the DFAT country information before it, the Tribunal assesses that the applicant does not have a profile as a member of the Tamil diaspora of interest to the authorities. On the evidence of the applicant at hearing, the Tribunal finds the applicant’s involvement in the Tamil diaspora was limited to attendance of three commemorative events over seven years ago, that he has not held leadership positions in diaspora groups or advocated for Tamil statehood. The Tribunal finds that in the event the Sri Lankan authorities are aware of the applicant’s attendance at these commemoration ceremonies, his involvement would not be such that he will be of any security interest to the authorities on return to Sri Lanka.

   [46] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.57].

9. The applicant told the Tribunal that he has posted on his social media account about issues faced by Tamils in Sri Lanka, and the Tribunal accepts this may be the case. However, the applicant has provided no evidence that these posts involved material the Sri Lankan authorities may consider indicates that the applicant holds radical views, was formerly a part of the LTTE, or suspected of raising funds for the LTTE during the war; or that the applicant advocates in any way for Tamil statehood. The Tribunal finds that social media posts about issues faced by Tamils does not raise the applicant’s LTTE political opinion in these circumstances or provide him with an anti-government political profile in the eyes of the Sri Lankan authorities.

10. The Tribunal has considered the totality of the material before it relevant to an assessment of the applicant’s political activities in the Tamil diaspora in Australia and finds the Sri Lankan authorities will not impute the applicant with an LTTE political opinion on this basis.

    Imputed political opinion/membership of a particular social group as a returnee from the West after a prolonged period and failed asylum seeker

11. The Tribunal has considered the applicant’s claim that he is likely to be treated with suspicion by the Sri Lankan authorities because he claimed asylum in a Western country, and because he has spent a significant time abroad in a Western country. According to the applicant, the Sri Lankan authorities will believe this is indicative that he was previously involved with the LTTE and that he felt compelled to flee Sri Lanka. He also claimed at hearing that as he left Sri Lanka before the end of the war in 2009, he will be suspected of holding pro-LTTE sentiment especially given his previous issues with the authorities and will be punished on return. He claims that as a Tamil male who fled the country and was previously imputed with pro-LTTE sentiment, there is no doubt he would be subjected to harm upon return; he will be detained and interrogated by the authorities upon his arrival and either killed or imprisoned indefinitely. He also claims that the authorities are likely to be concerned that the applicant has spoken out about mistreatment in Sri Lanka and will seek to punish him.

12. The Tribunal has found above that the applicant departed Sri Lanka legally and will not be subject to any penalties for illegal departure from Sri Lanka. However, the Tribunal accepts he will be returning to Sri Lanka as a failed asylum seeker. The Tribunal accepts that the applicant is likely to be easily identifiable upon return to Sri Lanka as a failed asylum seeker especially given the prolonged period he has spent in Australia (as set out above, the applicant arrived in Australia on [date] December 2011 by boat and he has now been in Australia for over 10 years) and given he told the Tribunal he would likely return on a temporary travel document. The Tribunal has considered whether this would give rise to a real chance of persecution on return to Sri Lanka.

13. As discussed with the applicant, DFAT advises that unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights.[47] In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released. DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE).

    [47] DFAT Country Information Report on Sri Lanka, 23 December 2021, [5.17]–[5.20], [5.26] and [5.27]–[5.32].

14. The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.

15. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

16. Between 2010–11 and 2018–19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

17. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.

18. Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

19. In response to relevant DFAT country information, the applicant stated his belief that all people who have left the country a long time ago have been monitored behind the scenes. He also said that most had been shot. He indicated concern that publicly available information about treatment of returnees was not accurate. He stated that the Sri Lankan government announces externally/publicly that it is not harassing people returning to Sri Lanka but that this is not the case. He stated that in Sri Lanka everything is under government control. As an example of Sri Lankan government attempts to manage information released to the international community, he told the Tribunal that he had recently seen news reports that there have been protests about availability of food, while the government was stating that there is food. The applicant stated that even people who have been rehabilitated or considered of low-level interest are being monitored and harassed, and he gave the example of people collecting signatures in protest to Constitutional amendments being harassed. The Tribunal acknowledges that the government-sourced media may not be reliable, but the Tribunal assesses that the DFAT report is independent and draws its information from many sources to ensure reliability. The Tribunal gives weight to DFAT assessments and finds that the independent country information before it supports the conclusion that the applicant’s profile as a person of security interest is not elevated by his status as a failed asylum seeker who has spent a prolonged period in the West.

20. The Tribunal has considered DFAT country information discussed with the applicant at hearing[48] (and discussed further below) relevant to assessing whether a person may be of interest to the Sri Lankan authorities and considers it indicates that those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces. The Tribunal is satisfied that the DFAT report supports the conclusion that the timing of the applicant’s departure from Sri Lanka, or the applicant’s prolonged residence in the West, does not elevate suspicion that he is an LTTE affiliate. In these circumstances and given the Tribunal findings above that the applicant did not have an LTTE profile of any security interest to the Sri Lankan authorities in the past, the Tribunal does not accept the applicant will be suspected as pro-LTTE/an LTTE affiliate because he left Sri Lanka before the end of the war, or because he has lived for a long period in a Western country. The Tribunal finds that there is not a real chance that the applicant faces persecution involving serious harm due to political opinion imputed to him for these reasons. The Tribunal further finds that there is not a real chance that the applicant would suffer persecution involving serious harm on return to Sri Lanka because of his membership of a particular social group, namely as a failed asylum seeker/returnee who has spent a prolonged period in the West.

    Imputed political opinion/Tamil race

    [48] DFAT Country Information Report on Sri Lanka, 23 December 2021.

21. The Tribunal has considered whether the applicant has a real chance of persecution involving serious harm because of his Tamil race. As stated above, the Tribunal accepts the applicant is Tamil. The Tribunal also accepts that he can be identified as a Tamil given his appearance, language, area of origin and name. The applicant claims that given his personal circumstances and profile coupled with the situation in Sri Lanka, he will be at a real risk of serious harm upon return to Sri Lanka, as a Tamil.

22. The applicant claims that despite the civil war in Sri Lanka ending, the Sinhalese community continue to hold a great hatred towards the Tamil community. The applicant claims that the Sinhalese authorities are attempting to take over Tamil areas and continue to harass and intimidate Tamils, especially Tamils from the north who they deem to be affiliated with the LTTE. The applicant told the Tribunal that in [City 1] the army has taken over land belonging to the common people, and that many Sinhalese people have been settled in the north and east and that Tamils are not afforded many resources and are subjected to harassment and harm. The applicant indicated that he believes all Tamils are treated as if they are at least low-level LTTE affiliates and are subjected to harassment.

23. In the applicant’s representative’s submission of 10 March 2022, country information from a number of sources, including the US Department of State , the OHCHR Report, the UK Guardian, the Carnegie Endowment for International Peace and the International Crisis Group,[49] is provided, reporting that Sinhalisation is occurring in Sri Lanka, that the ethnic tensions in Sri Lanka are deeply entrenched and the Tamil community continue to be subject to persecution, harassment and serious harm.[50] It is submitted that Tamils are continuously targeted by the Sri Lankan authorities although they are trying to project an image of peace in Sri Lanka to the international community, and that these sources indicate that there has been an increasing trend towards repressing minority groups, facilitated by COVID restrictions.[51]

    [49] US Department of State: 2020 Country Report on Human Rights Practices: Sri Lanka, 30 March 2021 Carnegie Endowment for International Peace, Polarization and the Pandemic, 28 April 2020; International Crisis Group, Watch List 2020, Asia, A dangerous sea change in Sri Lanka, 29 January 2020.

    [50] Sri Lanka Human Rights under attack, Human Rights Watch, 29 July 2020.

    [51] Carnegie Endowment for International Peace, Polarization and the Pandemic, 28 April 2020.

24. It is further submitted that the situation for the Tamil population remains precarious, given that the current ruling elite was heavily involved in atrocities committed against the Tamil community in the past, that the authorities still have a high level of control, and that military bases still exist. Citing USDOS and the OHCHR, the applicant’s representative submits that reports indicate that Tamils especially in the north and east continue to face harassment and are unable to live freely.[52] A Human Rights Watch report of 2020 is cited finding that Tamils, particularly in the Northern Province, continue to face harassment and intrusive surveillance, and that in the aftermath of the Easter Sunday bombings in 2019, surveillance including against the Tamil community continued to increase.[53]

    [52] AAT 1715205, Doc Id 9529713, 11 March 2022.

    [53] HRW – Human Rights Watch: World Report 2020 – Sri Lanka, 14 January 2020.

1. The Tribunal acknowledges that the political situation in Sri Lanka is unsettled. However, the Tribunal gives weight to independent DFAT information discussed with the applicant at hearing, that the security situation in Sri Lanka, particularly in the north and east, has improved significantly since the end of the civil war in May 2009, and that the Sri Lankan government exercises effective control over the entire country, including Tamil-populated areas.[54]  More specifically, DFAT advises that the SLA still maintains a significant presence in the north, but that military involvement in civilian life has decreased overall since the end of the war, although military involvement in some civilian activities, particularly the economy, continues in the Northern Province. The government no longer restricts travel to the north and east and it removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks (by local Islamic extremists targeting three luxury hotels in Colombo and three Christian churches in Colombo, Negombo and Batticaloa). DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed.[55]

   [54] Ibid, [2.49].

   [55] DFAT Country Information Report on Sri Lanka, 23 December 2021, [2.49], [2.54]–[2.55].

2. In respect of increased monitoring and surveillance occurring under COVID-19 restrictions which adversely affect the Tamil community, the Tribunal has considered DFAT comments that many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner. DFAT advises that members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups.[56] Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November) and the public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

   [56] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.8]–[3.13].

3. DFAT states that Tamils were arrested in 2021 under the PTA for commemoration of the war. Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. However, the Tribunal takes into account DFAT’s assessment that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[57]

   [57] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.13].

4. The Tribunal accepts that historically, relations between Sri Lanka’s majority Sinhalese and minority Tamil communities have been tense.[58] The Tribunal further accepts that Tamils with certain profiles are more likely to attract the attention of the authorities. However, in this consideration, the Tribunal gives weight to DFAT’s independent country assessment that ordinary Tamils in the north and east of Sri Lanka are at low risk of official harassment and that Tamils face a low-level risk of societal discrimination based on their ethnicity.[59] The Tribunal finds below that the applicant does not have an LTTE profile or any profile such as to attract attention of the authorities. On this basis the Tribunal finds the applicant is not at risk of societal discrimination on account of his ethnicity as a Tamil in the north.

   [58] DFAT Country Information Report on Sri Lanka, 23 December 2021, [2.1].

   [59] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.3]–[3.7].

5. Considering the applicant’s evidence, and all the relevant country information before it, including information provided by the applicant’s representative, the Tribunal finds there is not a real chance the applicant would suffer persecution involving serious harm on account of his Tamil race should he return to Sri Lanka now or in the foreseeable future. For the same reasons, the Tribunal further finds that the applicant does not have a real chance of persecution involving serious harm as a Tamil from the north of Sri Lanka, or as a young Tamil Hindu male.

6. On the same basis, the Tribunal further finds that the applicant’s Tamil race is not enough to cause Sri Lankan authorities or any other parties to have potentially significant suspicion of the applicant as having some affiliation with the Tamil Tigers or the Tamil separatist cause. The Tribunal finds that the applicant does not have a real chance of persecution involving serious harm due to imputed political opinion as a Tamil from the north of Sri Lanka.

   The applicant’s profile (actual or imputed) as an LTTE affiliate

7. In considering whether the applicant would suffer persecution involving serious harm on return to Sri Lanka because he is imputed with an LTTE political profile of interest to the authorities, the Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has considered whether the Sri Lankan authorities will seek out the applicant on return to Sri Lanka as claimed, and whether he will be detained, abducted or tortured because of an LTTE profile.

8. The Tribunal has found above that the applicant was detained and questioned in 2006 by Sri Lankan authorities but that he was not of ongoing adverse interest due to a pro-LTTE political profile arising from his participation in [year] student protests at [College 1]. The Tribunal has further found that the applicant was not of adverse interest to the Sri Lankan authorities because he worked for international aid agencies, and that he was of no security concern to the Sri Lankan authorities as an LTTE affiliate at the time of his travel to Colombo in 2007. The Tribunal has found the applicant was not considered to be an LTTE affiliate, or that the authorities had an ongoing or genuine interest in the applicant following questioning by the CID or on his departure from Sri Lanka in 2008. The Tribunal has further found that the applicant’s presence on the [Port 1 boat] does not confer on him an LTTE political profile, or that he will be imputed with an LTTE political opinion of interest to the authorities on the basis of political activities in Australia, as a Tamil from the north or a failed asylum seeker/returnee from the West.

9. The Tribunal has considered its findings of fact about the applicant’s circumstances and on the basis of the country information before it, including country information provided by the applicant, and finds that the applicant does not have an LTTE profile such that he will be of adverse interest to Sri Lankan security forces on return to Sri Lanka. The Tribunal has reached this conclusion, having regard to DFAT advice discussed with the applicant at hearing indicating that those with indirect and past connections with the LTTE, unless at a very high level of the organisation or expressed in criminal acts or war crimes, are unlikely to be of significant interest to the Sri Lankan security forces.[60]

   [60] DFAT Country Information Report on Sri Lanka, 23 December 2021.

10. As discussed with the applicant at hearing, DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans.[61] However, DFAT reports that while the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned about its potential re-emergence, and to separatist tendencies in general.[62] For this reason, people of certain profiles may be of interest to the authorities as representing a security risk. DFAT indicates that ‘low-profile’ former LTTE members who were former combatants, and particularly those suspected of having a combat function during the war, those employed in LTTE administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war, coming to the attention of the Sri Lankan authorities may be subject to detention and rehabilitation.[63]

    [61] Ibid, [3.49].

    [62] Ibid, [3.41].

    [63] Ibid.

11. The Tribunal observed that the applicant was not an LTTE member, a former combatant or suspected as having a combat function, or employed in LTTE administrative or other roles, and did not provide a high level of non-military support to the LTTE during the war, and that in its assessment, the applicant did not have a profile amounting to even a low LTTE profile, or a profile of any interest to Sri Lankan security forces. In response the applicant stated that even people of low profile or normal common citizens like him have been assaulted, and he provided examples of reports of Tamils being stopped on motorcycles and assaulted, and a person protesting about a land issue being assaulted. He referred to the 2009 killing of a 14- year-old, the son of a new Tamil leader, and asked how it can be guaranteed that the authorities would not do this now.

12. Taking into account DFAT information set out above, the Tribunal acknowledges that human rights abuses occur and that people of certain profiles of interest to the authorities such as those indicating separatist tendencies, or as discussed below, who challenge the government, may be at risk of harm. The Tribunal has considered the applicant’s background and circumstances, noting that he has not had past or present involvement in separatist or anti-government activities, and finds he will not be involved in such activity on his return to Sri Lanka.

13. Having carefully considered the applicant’s particular circumstances individually and in total and relevant country information, discussed with the applicant, the Tribunal finds the applicant does not have an imputed pro-LTTE profile such that he is of any adverse interest to the Sri Lankan authorities. The Tribunal finds there is not a real chance that the applicant would suffer treatment involving serious harm, such as detention, interrogation or torture, due to his being imputed with a pro-LTTE political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.

    Treatment on return to Sri Lanka

14. The Tribunal has considered the applicant’s claims that he will be detained on re-entry to Sri Lanka and interrogated by the authorities upon his arrival and either killed, imprisoned indefinitely or seriously harmed, in post-arrival screening or subsequent to it, because he is deemed to be an LTTE member/affiliate on the basis of his profile.[64]

    [64] AAT 1715205, Doc ID 9798283, 30 May 2022.

15. As discussed above, the Tribunal accepts the applicant will be returning to Sri Lanka on a travel document and will be interviewed by relevant authorities upon his return to Sri Lanka to confirm his identity causing him to have dealings with the Sri Lankan authorities.

16. The Tribunal has considered the applicant’s personal circumstances, noting the finding that he departed Sri Lanka legally in his own identity and that he has declared that he has not been involved in any criminal matters. The Tribunal also takes into account the finding above that the applicant does not have an imputed pro-LTTE political profile of adverse interest to the Sri Lankan authorities. On this basis, the Tribunal finds the authorities will not have ongoing interest in the applicant and will not seek to obtain information from the applicant in respect of a perceived affiliation with the LTTE or his travel abroad as claimed. The Tribunal concludes it will be a relatively straightforward process for the Sri Lankan authorities to verify his identity and establish that he is not wanted in relation to any criminal matters. The Tribunal does not accept the applicant’s claim the authorities will wish to further investigate his background, even taking into account the Sri Lankan authorities may have record of his past questioning.

17. The applicant’s representative submitted that on return to Sri Lanka, the applicant will be subject to aggressive monitoring and that the nature of this monitoring should not be understated, involving visits by police, visits to family members, threats and seizure of property. It is submitted that at the very least, the applicant will be harassed by the police or that he will be subject to more severe measures.[65] The Tribunal put DFAT information to the applicant that some Tamils with actual or imputed LTTE links (including those who fought for the LTTE or were part of its civilian administration) continue to report police monitoring and harassment. Multiple sources in the north told DFAT that former LTTE members, including those considered low-profile, are monitored to guard against the LTTE’s re-emergence. Local sources also claimed the authorities – usually undercover police officers or intelligence agents – sometimes used more subtle methods, for example inviting individuals to tea in public places and asking questions about their activities. Such questioning did not involve violence. Telephone calls were also common. Some sources claimed questioning was sometimes indirect and involved questioning the neighbours of suspected former LTTE members.[66]

    [65] AAT 1715205, Doc Id. 957731, 24 March 2022.

    [66] DFAT Country Information Report on Sri Lanka, 23 December 2021, [3.50]–[3.52].

18. The Tribunal takes into account information submitted by the applicant’s representative indicating that Tamils especially in the north and east and those with suspected LTTE affiliations continue to face harassment and are unable to live freely especially activists, journalists, and NGO staff and former or suspected former LTTE members.[67] However, the Tribunal has also considered the independent DFAT assessment put to the applicant at hearing, that while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE. In the case of the applicant, the Tribunal has found above that he was not an LTTE member or imputed with an LTTE political opinion, and that he does not have a profile of interest to the authorities. While acknowledging that DFAT cannot determine the circumstances of monitoring for all returnees, giving weight to independent DFAT information, the Tribunal considers the information before it indicates that the applicant, who has been found not to have an actual or imputed LTTE political profile, would not suffer harm through monitoring, or through treatment that went beyond monitoring, or questioning post-arrival. The Tribunal does not accept that the applicant will be subject to aggressive monitoring or harassment by the authorities or any more severe measures, as claimed.

    [67] AAT 1715205, Doc Id. 9529713, 11 March 2022.

19. It is also submitted that given the applicant’s personal circumstances, it is plausible that he would be detained, interrogated and tortured upon arrival to Sri Lanka under the PTA which it is claimed is continually used against Tamils, and relied upon by Sri Lankan authorities to punish and coerce individuals who are considered non-supportive of the Sri Lankan authorities. In this regard, the applicant stated that his involvement in the [College 1] protests, along with his Tamil race, may be used as a reason for his detention under the PTA and the belief that he is an LTTE sympathiser.

20. The applicant’s representative refers to country information from a range of sources including Human Rights Watch[68] and USDOS[69] indicating that Sri Lankan authorities continue to rely on torture and that Tamils are at risk of being subjected to torture, which is endemic in the country, and that human rights abuses continue to occur. The UK Upper Tribunal also found that “there is a reasonable likelihood that those detained by the Sri Lankan Authorities will be subjected to persecution.”[70] As discussed at hearing, DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing, and multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned, but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence. However, DFAT assesses that Sri Lankans face a low risk of torture overall.[71]

    [68] AAT 1715205, Doc Id. 9529713, 11 March 2022; Sri Lanka Human Rights under attack, Human Rights Watch, 29 July 2020.

    [69] AAT 1715205, Doc Id. 9529713, 11 March 2022; United States Department of State, Annual Report 2017, 20 April 2018.

    [70] Upper Tribunal (Immigration and Asylum Chamber) Appeal Number PA/09978/2016/PA/13288 issued on 27 May 2021.

    [71] DFAT Country Information Report on Sri Lanka, 23 December 2021, [4.17].

21. The Tribunal notes that DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the government.[72] The Tribunal has found above that the applicant will be interviewed on arrival. However, the Tribunal has found that the applicant who does not have an actual or imputed pro-LTTE security profile of interest will not be detained by authorities through this process or once in the community. On this basis the Tribunal is satisfied the applicant does not have a real chance of serious harm arising from torture in detention at the hands of the Sri Lankan authorities.

    [72] DFAT Country Information Report on Sri Lanka, 23 December 2021, [4.18].

22. The Tribunal has considered the applicant’s claim that he will be detained, interrogated and tortured under the PTA on return to Sri Lanka because, given his background as a returned asylum seeker and a Tamil man with an adverse LTTE profile, the authorities will believe he is a sympathiser of the LTTE. The applicant stated that because Gotabaya Rajapaksa is now President, the PTA means that people can be detained at any time without explanation. In assessing whether there is a real chance that the applicant would suffer treatment amounting to persecution involving serious harm because there is a risk he will be detained under the PTA, the Tribunal has had regard to information from a range of sources provided by the applicant’s representative. These sources suggest that the PTA enables detention of people at any time without explanation and that the authorities continue to misuse powers and use the PTA. These sources indicate that the PTA has yet to be removed despite government indications that it would be, and that the PTA allows prolonged and arbitrary detention and that its vague wording allows the PTA to be misused by authorities to punish individuals.[73] The Tribunal has also had regard to the applicant’s representative’s submission of 23 May 2022, where a recent Human Rights Watch report on failure to reform the PTA is extensively cited.[74] HRW reports that the use of the PTA to indefinitely detain individuals results in torture.[75] On the basis of this report, it is submitted that even a small matter can result in the authorities using the PTA and it is submitted that the applicant’s specific circumstances may lead him to be detained under the PTA.

    [73] AAT 1715205, Doc Id. 9798282, 23 May 2022.

    [74] AAT 1715205, Doc Id. 9798282, 23 May 2022; HRW – Human Rights Watch: “In a Legal Black Hole” Sri Lanka’s Failure to Reform the Prevention of Terrorism Act, 7 February 2022.

    [75] HRW – Human Rights Watch: “In a Legal Black Hole” Sri Lanka’s Failure to Reform the Prevention of Terrorism Act, 7 February 2022

1. In assessing the information before it, the Tribunal notes that DFAT reports that the PTA has been recently used against Tamils accused of attempting to resurrect the LTTE.[76] In assessing whether there is a real chance that the applicant would suffer treatment amounting to persecution involving serious harm under the PTA, the Tribunal has considered the applicant’s profile and notes that he is not a former LTTE member or affiliate and has not been involved in any activity that could be characterised as presenting a challenge to the government. On this basis, the Tribunal finds the applicant will not engage in any activity which could lead to accusations of challenging the government or attempting to resurrect the LTTE. As discussed above, the Tribunal also takes into account that DFAT reports that it is not aware of returnees from Australia to Sri Lanka being charged under the PTA.

   [76] DFAT Country Information Report on Sri Lanka, 23 December 2021, [4.23].

2. Given the findings of fact above and the country information before it, the Tribunal finds the applicant will not be detained under the PTA because he will be suspected of LTTE sympathy or for any other reason. The Tribunal does not accept the submission that in the applicant’s circumstances there is a real chance the applicant would be subjected to mental and physical harm from the Sri Lankan authorities to obtain a confession from him through intimidation and coercion. The Tribunal finds there is not a real chance that the applicant would suffer treatment involving serious harm due to detention under the PTA, should he return to Sri Lanka now or in the reasonably foreseeable future.

   Refugee criterion

3. Given the Tribunal’s findings above, and having considered the applicant’s circumstances both individually and cumulatively, and relevant country information, the Tribunal finds there is not a real chance that the applicant will face treatment amounting to persecution involving serious harm from the Sri Lankan authorities, including the SLA; the Sinhalese community; or from any other agency, organisation, group or individual, due to his Tamil race; membership of a particular social group (as a returnee from the West/failed asylum seeker); and imputed political opinion due to race, area of origin, involvement in student protests, his advocacy work with aid organisations in Sri Lanka, his period on the [Port 1 boat], time abroad and activities in Australia, and as a returnee from the West after a long period/failed asylum seeker; his religion as a Hindu; or for any other of the five reasons mentioned in s 5J(1)(a) of the Act, should he return to Sri Lanka now or in the reasonably foreseeable future. In light of these findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.

100.   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 s 36(2)(a).

Complementary protection criterion

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).

102.   In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[77]

[77] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

103.   Considering the applicant’s circumstances individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm as set out in s 36(2A), from the Sri Lankan authorities, including the SLA; the Sinhalese community; or from any other agency, organisation, group or individual.

104.   In reaching this conclusion, the Tribunal has considered the applicant’s submission that given his profile there is a strong likelihood he will be detained upon re-entry to Sri Lanka, and that given the notoriety of Sri Lankan prisons and the long history of persecution by the Sri Lankan authorities against the Tamil minority and individuals who are deemed to be LTTE affiliates, it is highly probable the applicant would be subjected to cruel and inhuman punishment while detained, and that it is likely the applicant would not immediately be released on remand.

105.   The Tribunal has found above that the applicant departed Sri Lanka legally on [date] November 2008 and therefore finds that he could not be detained under the Immigrants and Emigrants Act (1948) for illegal departure on his return to Sri Lanka.[78] As discussed above, the Tribunal acknowledges that in the circumstances where the applicant returns on a travel document, the country information indicates that he would be interviewed upon return. However, on the basis of country information noted above, the Tribunal is satisfied the applicant will not be subjected to harm during this interview and given the finding above that the applicant does not have a profile of interest to the authorities, the Tribunal does not accept he will be detained for any length of time on arrival in Sri Lanka. It follows the applicant will not be subject to significant harm in detention.

[78] DFAT Country Information Report on Sri Lanka, 23 December 2021, [5.17]–[5.24].

106.   The Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm as set out in s 36(2A).

107.The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Member of the same family unit

1. 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

109.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Amanda Paxton
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.

…