1715212 (Refugee)

[2023] AATA 2240

1715212 (Refugee) [2023] AATA 2240 (15 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBER:  1715212

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Brendan Darcy

DATE:15 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 March 2023 at 2:56pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – Tamil male with pro-LTTE sentiments – relatives in the LTTE – particular social group – failed asylum seeker – credibility issues – sur place activities and behaviour modification – involved in commemorative events in Australia – well-founded fear of persecution – would be taking unreasonable steps to modify behaviour to avoid real chance of persecution in Sri Lanka – would conflict with applicant’s conscience and conceal his true political beliefs – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visa on 15 October 2015. The delegate refused to grant the visa on the basis that the available country information did not support the applicant to be a refugee and did not otherwise engage Australia’s protection obligations.

3. The applicant appeared before the Tribunal on 7 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

12. The applicant was born on [date] in [Jaffna], Northern Province, Sri Lanka.

    Travel and migration history

13. The Department file contains a letter from the applicant’s mother dated 21 December 2011, that the family (and applicant) had their long-term residence [in] Sri Lanka’s Northern Province. The family was displaced in military action related to the civil war in Sri Lanka in or around June 1990 and had resided temporarily in [location] since as they had not been permitted to return to their permanent residence as of the time of writing.

14. The applicant claims to have usually resided in [Country 1] from September 2004 to June 2007 where he worked as [an occupation].

15. The applicant returned to Colombo in Sri Lanka to attend the wedding of his sister in 2006.

16. The applicant returned to Sri Lanka, living in Colombo and Vavuniya from June 2007 to February 2008.

17. In February 2008 the applicant moved to [Country 2], travelled to [another country] in June 2010 and returned to [Country 2] in August 2010. In March 2011, the applicant travelled from [Country 2] to [Country 3].

18. [In] November 2011, the applicant travelled to Australia by boat. The boat was intercepted by Australian authorities in Australian territorial waters. The Australian authorities designated the name [redacted] to this boat. Thereafter, the applicant was taken, with others on the boat, to Christmas Island [in] December 2011.

19. On 14 December 2011 the applicant requested a Protection Obligations Determination (POD). On 20 March 2012 the POD was refused.

20. On 21 March 2012 the POD was referred for an Independent Protections Assessment (IPA). On 5 December 2012 the IPA determined the applicant was a refugee and accepted his claims.

21. On 28 August 2015 the Minister lifted the s 46A bar to allow the applicant to lodge a valid visa application. On 15 October 2015, the applicant lodged a valid application for an XE 790 Temporary Protection Visa (the present application).

22. In his visa application the applicant claims to be of Tamil ethnicity and Hindu faith.

23. The applicant’s parents were both Sri Lankan and at the time of the visa application his father had died, and his mother remained in Sri Lanka. The applicant has [a] brother [and number of sisters]. At the time of the visa application, all remained in Sri Lanka apart from [one] sister who resides in [another country]; all except his younger sister were married.

24. At the time of visa application, the applicant claimed to be able to speak, read and write Tamil and a little English.

25. The Department file that relates to the applicant’s visa application contains copies of the following documents relevant to the applicant’s identity:

    ·     An untranslated copy of the applicant’s Sri Lankan National Identification Card;

    ·     Original and translated copies of the applicant’s Sri Lankan birth certificate; and

    ·     Copies of a family particulars document from Sri Lanka undated but which appears to predate the death of the applicant’s father.

26. The applicant claims to have received 13 years of schooling in Sri Lanka ending in [year]. The Department files contain some educational records, some of which are not in English and without translation. The applicant claims to have not undertaken tertiary education or trade qualifications.

27. The applicant’s claims are outlined in a statutory declaration made on 4 February 2012 in support of his POD; materials and claims relied on in the POD were also relied on in support of the present visa application. The claims can be summarised as follows:

    ·     The applicant first left Sri Lanka for [Country 1] in 2004 as the Liberation Tigers of Tamil Eelam (LTTE) had attempted to recruit him.

    ·     The applicant returned to Sri Lanka to attend the wedding of his sister in 2006; during this time he stayed in Colombo at his sister’s house.

    ·     While staying at his sister’s house some people came to the house and took the details of all the people there and said they were registering all people in the immediate area. The applicant was not able to identify which agency they were from as they were not wearing uniforms.

    ·     The applicant’s second cousin ‘[Cousin A]’ was a former member of the LTTE and was greatly involved in the organisation of the wedding.

    ·     The applicant returned to [Country 1] after about a month. Following this his sister received calls from someone claiming to be the same person who was registering details. The person asked after the applicant and his second cousin. Due to the civil war reaching its peak the second cousin had gone into hiding. When the sister informed the caller that she was not aware of the whereabouts of the second cousin and the applicant the caller said this would cause problems for the sister. The caller demanded five million rupees and called the sister frequently. This caused the sister to move to India and to change her phone number.

    ·     In June 2007 at the expiration of the applicant’s [Country 1] visa, the applicant returned to Sri Lanka initially staying with relatives in Colombo. The sister’s neighbours informed the applicant people would come to the house and ask after the applicant. The applicant then moved in with his sister in [location].

    ·     After less than a month of living with his sister police visited the home asking why they had moved there from Colombo and suspected the applicant was a member of the LTTE.

    ·     The applicant left and moved to Vavuniya, living with a classmate. After a week he was again visited by the Sri Lankan police who detained him for a day and interrogated him regarding his relocation to Vavuniya during which he was severely beaten. His friend’s father assisted in securing his release, he was not charged as he paid a bribe to the police. He told the police he would move away from Vavuniya.

    ·     The applicant moved locations within Vavuniya and again did not register his details. He was again detained, interrogated and beaten by the Sri Lankan police – while the police did not mention the second cousin on this occasion the applicant feared it was a matter of time before the connection was made.

    ·     The applicant fears being detained and killed by the Sri Lankan authorities as a young Tamil male and the implied connection to the LTTE in any circumstance.

    ·     The applicant fled Sri Lanka to [Country 2].

    ·     Shortly after the applicant fled to [Country 2], he became aware that another cousin had been detained, interrogated and put on trial due to the association with the LTTE through their mutual cousin ‘[Cousin A]’.

    ·     The applicant had registered as an asylum seeker with the UNHCR in [Country 2].

28. In addition to identity and education evidence noted above the applicant also provided copies of his UNHCR registration card from [Country 2], and Asylum Seeker Certificates from the UNHCR issued in [Country 3]. There was also a property deed transfer from Sri Lanka, which relates to the home of his sister in Colombo.

29. On 6 June 2017, the applicant was interviewed by the Department in relation to his visa application.

30. On 27 June 2017, a delegate on behalf of the Minister refused to grant the visa.

    Evidence submitted to the Tribunal

31. On 14 July 2017 the applicant lodged the present application for review with the Tribunal with the delegate’s refusal decision attached.

32. On 1 April 2022 the representative made submissions to the Tribunal and provided an updated statement from the applicant. The submissions were that the applicant continued to rely on his earlier claims and submissions.

33. The statement added to the applicant’s claims as follows:

    ·     Sri Lankan authorities have continued to question his family about his whereabouts; his brother has been approached three times since his interview with the delegate. In 2019 the Central Intelligence Department (CID) detained ‘his brother’ for three days interrogating him as to whether the applicant was an LTTE affiliate and his connection to [Cousin B].

    ·     His cousin, [Cousin A], now resides in [Country 4], where he was granted permanent protection.

    ·     ‘His other cousin’, [Cousin B], who was detained in 2009, continues to be held in [Prison 1] in Colombo pursuant to the Prevention of Terrorism Act.

    ·     [Cousin B] became a person of interest due to the authorities connecting him to [Cousin A]. The applicant spent a lot of time with both of these men while in Sri Lanka and he feels this will be the basis of the Sri Lankan authorities’ interest in him.

    ·     The applicant attends events arranged by the Tamil community, he attends the Remembrance Day events and has assisted in organising Martyr’s day events. He has attended protests including outside Parliament House in Canberra.

    ·     The applicant fears that he would be treated with suspicion and harmed if returned to Sri Lanka, as a Tamil male from the North, as well as due to his association with [Cousin B] and [Cousin A].

34. It was raised that the applicant did not mention [Cousin B] in his earlier statement of claim. The delegate noted that the applicant mentioned at paragraph 13 of his statement of claim dated 1 October 2015 that his cousin was detained and taken to the fourth floor of a building where an interrogation took place. The applicant clarified to the delegate that he was referring to [Cousin B].

35. The submissions of the representative outlined the claims relied on by the applicant outlining that he fears persecution on the basis of:

    ·     his race or ethnicity as a Tamil;

    ·     being imputed with a political opinion as a Tamil male with pro-LTTE sentiments; and

    ·     membership of a particular social group as a failed asylum seeker.

36. The submissions were supported with updated country information and legal argument.

37. As mentioned above, a hearing was held on 7 April 2022. At the end of the hearing, the applicant’s representative undertook to provide a submission and to do so by 6 May 2022.

38. On 5 May 2022, the Tribunal received a 14-page legal submission and a copy of medical documents pertaining to the applicant’s brother. The medical documents indicate the applicant’s brother was issued an appointment for an MRI scan in October 2019, and prescription for blood pressure and constipation medication in November 2019.

39. On 19 August 2022, the Tribunal wrote to the applicant under the Act’s adverse information provisions seeking comment on country information arising from the Department of Home Affairs’ Country of Origin Information Services Section (COISS). The COISS had prepared a situational update on Sri Lanka about that country’s recent political and economic crisis. A copy of this August 2022 COISS update was attached.

40. On 15 September 2022, the Tribunal received a seven-page legal submission prepared by the applicant’s representative addressing the country information put to the applicant.

41. On 16 September 2022, the Tribunal received a one-page letter dated 16 September 2022. It is claimed to have been written by the attorney of [Cousin B]in a criminal matter and stated that [Cousin B] was detained by Sri Lankan authorities, arrested under Sri Lanka’s Prevention of Terrorism Act and imprisoned at [Prison 1] in Colombo.

42. No further documents regarding the applicant’s claims for protection were received. There are no non-disclosure certificates attached to the applicant’s Departmental or Tribunal files.

    Country information

43. Below is an extract from the most recent DFAT country information report on Sri Lanka issued on 23 December 2021:

    Tamils

    3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

    3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

    3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

    3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

    Monitoring, harassment, arrest and detention

    3.8 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 (see Liberation Tigers of Tamil Eelam).

    3.9 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. 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 (see Civil society organisations and government critics and Media).

    3.10 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. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).

    3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

    3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.

    3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses 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.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of reference

1. The applicant arrived in Australia as an irregular maritime arrival without a passport. Noting the Department accepted the applicant’s identity and his nationality, the applicant has provided sufficient information regarding his identity and place of birth. The Tribunal accordingly finds that Sri Lanka is his country of nationality for the purposes of the Act’s definition for refugee status and also his receiving country for the purposes of s 5(1) and s 36(2)(aa) of the Act.

   Third country protection

2. The applicant does not have permission to enter and reside in any other country. The third country protection provisions in the Act are accordingly not relevant in this decision.

   Credibility considerations and findings

3. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.

4. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70). In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (see Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

5. The Tribunal notes that the delegate found that the applicant has provided relatively consistent written and oral evidence. The decision record states that it was plausible the applicant may have found it difficult to recall precise dates and details given the passage of time since he departed Sri Lanka.

6. In this matter, the Tribunal has a number of credibility concerns arising from a number of fanciful and implausible elements of the dispositive claims arising from past incidents involving third parties which are outlined below.

7. Nonetheless, with these credibility concerns in mind, the Tribunal finds the following elements of the applicant’s background and family composition to be credible and reliable:

   ·     The applicant was born in [year] in [Jaffna] in Sri Lanka’s Northern Province.

   ·     The applicant’s and his family’s ethnicity is Tamil and their religion is Hindu while the applicant speaks, reads and writes the Tamil language.

   ·     The applicant was raised near Jaffna; however, in the 1990s, his family was displaced because of the impact of Sri Lanka’s civil war.

   ·     The applicant’s father died of natural causes in 2001 while his mother currently resides in Jaffna.

   ·     As explained in the hearing, the applicant has [number] siblings. The applicant’s [brother] is [an occupation] in Jaffna where he is married, while he has [sisters] who are married and living in Jaffna. The applicant also has one sister who passed away in or around 2015 and one who emigrated to [another country] on a [visa].

   ·     Fearing forced recruitment by the LTTE, the applicant resided in [Country 1] where he worked between September 2004 and June 2007.

   ·     The applicant visited Colombo, the capital city of Sri Lanka, for his sister’s wedding in August 2006.

   ·     The applicant departed Sri Lanka in February 2008 before eventually departing for Australia. During this period of time, the applicant generally resided in [Country 2] where he applied for refugee status through the UNHCR.

   ·     The applicant currently lives in metropolitan Melbourne where he has owned and operated a [business] on a medium to long-term basis.

   ·     The applicant has never been engaged to be married, married or lived in a de facto relationship; neither does he have any children or dependants.

8. The Tribunal notes the applicant left Sri Lanka in 2004 at the age of [age], visited shortly in August 2006, returned to Sri Lanka in June 2007 before departing in 2008 for South East Asia and then arriving in Australia in December 2011. Between the ages of [age range] – the applicant’s age when he arrived in Australia – he spent less than three years in Sri Lanka. Given this, and that key members of his family continue to reside in metropolitan Jaffna and the applicant was raised in or around Jaffna, for the purposes of the decision, the applicant’s home area is considered to be the metropolitan Jaffna area, broadly speaking.

   Past harm incidents

9. Throughout the submitted statements and during the hearing, the applicant has consistently stated that he has never been a member of the LTTE but he fears being imputed with a pro-LTTE political opinion.

10. The LTTE was formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. The LTTE – commonly known as the Tamil Tigers – established and maintained de facto control of Tamil-populated areas in the north and east. The LTTE gained notoriety for its recruitment of children and, in particular, use of suicide bombings. It was proscribed as a terrorist organisation by the United States (US), Canada, the European Union, Australia and India, among others. A ceasefire between the Sri Lankan Government and the LTTE, signed in 2002, reduced the intensity of fighting but failed to yield a political settlement. The ceasefire broke down in 2005 and internationally-mediated peace talks collapsed in 2006. Government forces re-took the eastern part of the country from the LTTE in July 2007 and, in January 2008, launched a major offensive to capture remaining LTTE-controlled areas in the north, culminating in the elimination of most of the LTTE’s senior ranks, including its leader, Velupillai Prabhakaran. The LTTE surrendered in May 2009. The UN and human rights organisations have documented serious violations during the final stages of the war, during which up to 40,000 civilians may have been killed. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people.

11. The Tribunal enquired whether the applicant had donated any money to the LTTE since his arrival in Australia, to which he said he had not. The applicant did admit that while he was in school in an LTTE-controlled area in the Northern Province, he was required to attend Tiger events, but he did not undertake any training for the militant separatists. The Tribunal accepts these aspects of his past political opinion to be credible, noting that these are not the reasons claimed for him holding a well-founded fear of persecution.

12. What the applicant has claimed is that he will be imputed with a pro-LTTE political opinion and that he had an open and close association with an LTTE member, namely a cousin named [Cousin A] whom it was claimed was an LTTE member. In the interview with the Department, [Cousin A] was identified as [name] who was aged [age] in 2006. The applicant claimed that [Cousin A] had previously been a member of the LTTE but left in 1997 and spent two years in jail due to his LTTE association between 1998 and 2000.

13. The applicant claimed that leading up to his sister’s wedding, members of the CID came to his sister’s house in Colombo to collect names. The applicant claimed Tamil residences were targeted for this kind of questioning. After the applicant had departed for [Country 1], the applicant’s sister received threatening calls, asking for the whereabouts of the applicant and [Cousin A] and demanding five million rupees. This frightened the applicant’s sister who fled to India. Because the applicant’s [Country 1] visa was expiring, the applicant returned to Sri Lanka with some apprehension.

14. The applicant claimed that he was arrested and detained at a police station where he was beaten. The applicant then claimed he moved to Vavuniya after he was released. Determined to leave Sri Lanka, the applicant then received advice from agents who recommended he flee for [Country 2] – where he subsequently applied for UNHCR refugee status. The applicant, as mentioned above, departed for [Country 2] while holding a Sri Lankan passport. While the applicant was offshore in 2007, it was claimed that his second cousin [Cousin A] was arrested.

15. Overall, the Tribunal found this claim to be an unpersuasive attempt to contrive a tenuous link between the applicant who had spent most of his adult life outside of Sri Lanka, and anyone associated with the LTTE, and therefore, a person of interest.

16. The applicant also advanced a claim that he and [Cousin A] had an association with [Cousin B]and that [Cousin B] had been kidnapped by the authorities in a white van and detained indefinitely as a suspect of LTTE membership and ‘a [specified]’ case. The Tribunal has been able to locate only one media report involving [Cousin B] indicating that a magistrate in 2013 had ordered [Cousin B]to be interrogated by the Terrorist Investigation Division (TID). The article is unclear as to how long [Cousin B] had been detained.[1] Had [Cousin A] been so closely associated with such a high-profile alleged terrorist, it is implausible to suggest that he gained permission to leave Sri Lanka for [Country 4]. This further indicates the claim by the applicant to have been fanciful.

    [1] [Source deleted].

17. The applicant further claimed his association with [Cousin B], while not biological, was close. It was raised that the applicant did not mention [Cousin B] in his earlier statement of claim. The Tribunal does not accept the explanation provided, namely the lack of clarity in his earlier statement. This claim is found by the Tribunal to be a late contrivance with particular adverse credibility emphasis placed on those aspects where the applicant claims [Cousin B], an alleged LTTE terrorist, to be as close as a brother.

18. The third-party correspondence about [Cousin B] from a Sri Lankan attorney is also found to be bogus to further augment the applicant’s otherwise weak claims about being a person of interest. The Tribunal also places no weight on his brother’s medical health record which lacked any meaningful details as evidence that his brother was harassed or questioned about the applicant’s whereabouts.

19. Accordingly, the Tribunal does not accept the applicant has a genuine or deep or urgent fear of persecution, either subjectively or objectively understood, based on any LTTE association, imputed or otherwise, arising from these fabricated past harm incidents, either at the time the applicant departed Sri Lanka or when he applied for protection. Neither does the Tribunal accept the applicant holds a well-founded fear of persecution as an LTTE associate or member, imputed or otherwise, based on these past harm claims, either now or into the foreseeable future, should the applicant return to the Northern Province or Sri Lanka more generally.

20. Based on the same adverse credibility findings, the Tribunal does not have substantial grounds for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, faces a real risk of significant harm based on these claims about associations with the LTTE, imputed or otherwise. The applicant therefore does not satisfy s 36(2)(aa) in this regard.

21. The applicant has provided documents to support that he suffers from significant mental health conditions. On 5 April 2022, the Tribunal received a postponement request for the scheduled hearing on 7 April 2022. Attached to the postponement request was a medical certificate from [a doctor] from a medical clinic in [location] dated 4 April 2022, and for the hearing to be postponed for at least a month. It was the opinion of the applicant’s treating medical practitioner that the applicant was not medically fit for a hearing due to suffering significant stress, anxiety and depression on a background of uncontrolled diabetes, hypercholesterolemia and hypertension. The Tribunal refused this postponement request on the basis the medical evidence was insufficient to demonstrate the applicant was acutely unfit to give evidence and present arguments as to the reasons he is owed Australia’s protection obligations. The applicant claimed that he would not be able to be treated for his mental conditions in Sri Lanka because he would be arrested, detained and then he would die. The Tribunal asked about the situation if he was in the community, to which the applicant said he would be arrested. He further pointed out there were rallies throughout Sri Lanka about the cost of living. The Tribunal said it was specifically asking about the accessibility and quality of health care services in Sri Lanka, to which the applicant said he had not been in his home country for a long time and therefore could not make an assessment. The Tribunal notes the applicant has owned and operated a successful takeaway enterprise for some time. His industry as a self-employed businessperson indicated to the Tribunal that the applicant did not have any significant or even notable mental health conditions. The Tribunal finds that the applicant considerably embellished symptoms to augment his otherwise weak claims and places negligible weight on his mental health claims in this decision.

22. The Tribunal enquired whether the applicant believed Sri Lanka would slip back into civil war between Tamils and Sinhalese Sri Lankans, to which he said it could. The Tribunal asked who would fight for the Tamils if the LTTE is disbanded, to which the applicant said it was the government who call the Tamils ‘Tigers’ – implying that it would be the government that attacks the Tamils. The Tribunal further asked whether the Tamil National Alliance (TNA) was well-placed to represent Tamil Sri Lankans. The applicant asked who they were. The Tribunal elaborated that the TNA is the Tamil party that sits in the Sri Lankan parliament and that most Tamils have voted for this party. The Tribunal pointed out that the TNA is not a separatist party or movement but a party seeking to protect and enhance the rights of Tamils within a Sinhalese-dominated Sri Lanka. The applicant stated he had only heard of separatist political movements for Tamils. The Tribunal asked if the applicant had a view in favour of separatism, to which the applicant responded that while he could not comment on the Tamil politics, he was scared to return to Sri Lanka as it is the government that identifies him as a separatist, due to his being a Tamil.

23. The Tribunal accepts that the applicant who departed Sri Lanka in 2008 before the civil war ended, held a subjective fear of persecution arising from the civil war reigniting in Sri Lanka and pervasive levels of social discrimination against Tamils and the widespread suspicion among the authorities towards Tamils, and that he continues to hold these fears.

24. After all, the most recent and previous DFAT reports outline systematic abductions using white vans, often leading to enforced disappearances, which occurred during the war and in the period after. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. DFAT assesses that reports of a small number of abductions involving white vans in 2016 and 2017 likely referred to incidents where police did not follow protocol during arrest. DFAT understands that such disappearances are no longer common. Extortion and kidnapping for ransom were common during the war, particularly in the north and east. While they are still known to occur, their incidence has decreased considerably in the post-war period. Where extortion and kidnapping for ransom occurs, the motive is usually business-related. DFAT assesses that wealthy Sri Lankans face a low risk of extortion or kidnapping for ransom.

25. In this regard, the applicant’s contrivances and embellishments are understandable.

26. However, without making any exhaustive findings, the Tribunal does not accept, after more than 12 years since the end of the civil war, that Tamil–Sinhala relations would deteriorate to the point of restarting the civil war.

27. Nor does it accept that the applicant has a real chance of serious harm based on his ethnicity or his religion as a Hindu.

28. The DFAT report refers to Tamils being the second largest ethnic group in Sri Lanka at 15.3 per cent of the population. According to the most recent national census the Tamil population was 3.1 million in 2012. The DFAT report notes that Tamils live throughout Sri Lanka, mainly concentrated in the Northern Province where they comprise 93 per cent of the population and the Eastern Province where they comprise 39 per cent of the population. The DFAT report also states most Sri Lankans tend to live within their own ethnic communities, although different ethnic groups live within close proximity in major urban areas. Colombo has roughly equal populations of Sinhalese, Tamils and Muslims. As Sri Lanka’s commercial centre, Colombo has attracted Tamils and Muslims from other parts of the country in search of greater economic opportunities. Many Tamils and Muslims also moved to Colombo during the war, to escape the fighting in the north and east. Tamils comprise most of the population in the Northern Province, with the region’s isolation during the war – and the ousting of Muslims by the LTTE in 1990 – making it less ethnically diverse.

29. Although Tamils are a significant and conspicuous minority within Sri Lanka, Tamils have a substantial level of political influence, and their inclusion in political dialogue has increased since the change of government in 2015. Tamil political parties are numerous, with the largest coalition of parties operating under the umbrella of the TNA. The TMVP and the EPDP are also active politically. The TNA’s vote share dropped with a noticeable swing towards more hard-line Tamil groups in the last local government elections (February 2018). Tamils faced less harassment during the 2015 presidential and parliamentary elections than in the 2010 elections. DFAT understands Tamils do not receive unwarranted attention from authorities because of their political involvement, including with the TNA. DFAT assesses there are no barriers to Tamil political participation. DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues. DFAT further assesses that non-Muslim Sri Lankans, including Tamils, face a low risk of official or societal discrimination based on ethnicity or caste, including in their ability to access employment or housing.

30. It is the Tribunal’s assessment based on the available country information that the degree of discrimination against Tamils, Hindu Tamils, Tamil-speaking Sri Lankans, Tamils from Northern and Eastern provinces or forced returnees from a Tamil background is not so significant or frequent, therefore it amounts to the applicant facing only a remote or insubstantial chance of serious harm but not a real or substantial chance of serious harm, based on his ethnicity, religion, being a failed asylum seeker from the Northern Province or a combination of these reasons or any other reasons the applicant argued he had a heightened profile in returning to Sri Lanka.

31. In this regard and notwithstanding further political opinion considerations, the applicant does not have an appreciable risk of facing harm in his home area or anywhere throughout Sri Lanka that would satisfy s 36(2)(a) based on these considerations.

1. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition: MIAC v SZQRB [2013] FCAFC 33. Based on this ‘real chance’ assessment of the country information and the applicant’s ethnicity, religion and membership of a particular social group, the Tribunal does not have substantial grounds for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, faces a real risk of significant harm based on the same considerations and does not satisfy s 36(2)(aa) in this regard.

   Sur place activities and behaviour modification

2. Section 5J(3) essentially requires that the decision-maker consider whether steps that the person could take to modify their behaviour are ‘reasonable’.

3. The terms of s 5J(3) suggest that the modification need not eliminate any possibility of persecution. Rather, it must reduce the chance of persecution to something less than a real one. If a decision-maker finds that there are reasonable steps that could be taken by an applicant to modify their behaviour so as to bring the risk of persecution to below that of a real chance, then the applicant will be taken not to have a well-founded fear of persecution, even if they would not, in fact, modify their behaviour on return to the receiving country. If, as a result of the modification of behaviour of the kind required by s 5J(3), there is either no harm at all, or harm falling short of serious harm, then no further enquiry is required on that aspect of a claim of a well-founded fear of persecution.[2] Conversely, s 5J(3) will not apply to a person if there remains a real chance of the person being persecuted despite taking reasonable steps to reduce that risk, or if the modified behaviour would itself attract a real chance of persecution.[3]

   [2] AWL17 v MIBP [2018] FCA 570 at [50] (application for special leave to appeal dismissed: AWL17 v MIBP [2018] HCASL 279).

   [3] See Department of Home Affairs, Refugee Law Guidelines, section 10.5, as re-issued 1 July 2017.

4. In determining whether a person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution, a decision-maker cannot require that person to modify their behaviour in one of the ways set out in s 5J(3)(a)–(c) (see Attachment).

5. However, the applicant had claimed that he had attended commemoration days in Australia for the Tamil martyrs and other protests. He claimed that he would light candles to give rest to the souls of martyrs and to recognise them for fighting for the Tamils of Sri Lanka.

6. During the hearing, the Tribunal received oral evidence about the applicant’s sur place activities in Australia to commemorate the martyrs of fallen Tamils who fought for self-determination from Sinhalese Sri Lankans during the civil war and in favour of meaningful investigations of the disappearance of Tamils. The applicant did not have any documentary evidence such as news reports or photographs or even social media entries. He was unable to explain how the authorities could come to know of his activities in Australia. However, he said that he had not promoted these images as he was afraid of the impact it would have on him on his return and his family currently in Sri Lanka. The applicant went on to explain that should he return to his home city of Jaffna in the Northern Province he could attend protests or commemorations at Nallur during the Thai Pongal celebrations if he did not fear being arrested and seriously harmed. He described the protests as not lawful and it was discussed whether the government had used the public health emergency laws to stop the spread of the coronavirus legitimately or as a political pretext.

7. While the applicant did not provide any photographic evidence of his attendance, on balance, the Tribunal accepts the applicant to have participated in such sur place activities and that these activities were undertaken out of genuine political motives and not solely for the purposes of creating a pretext for invoking fear of persecution or otherwise strengthening his claims to be a refugee.

8. The Tribunal also asked a number of questions to better understand his political beliefs and outlook. It specifically enquired whether Sri Lanka would slip back into civil war whereby Tamils and Sinhalese Sri Lankans would fight each, to which the applicant said it could. The Tribunal asked who would fight for the Tamils if the LTTE is disbanded, to which the applicant said it was the government who call the Tamils ‘Tigers’ – implying that it would be the government that attacks the Tamils. The Tribunal further asked whether the TNA was well-placed to represent Tamil Sri Lankans. The applicant asked who they were. The Tribunal elaborated that the TNA is the Tamil party that sits in the Sri Lankan parliament and that most Tamils have voted for this party. The Tribunal pointed out that the TNA is not a separatist party or movement but a party seeking to protect and enhance the rights of Tamils within a Sinhalese-dominated Sri Lanka. The applicant stated he had only heard of separatist political movements for Tamils. The Tribunal asked if the applicant had a view in favour of separatism, to which the applicant responded that while he could not comment on the Tamil politics, he was scared to return to his country of reference as it is the government that identifies him as a separatist due to his being a Tamil.

9. 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. 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. LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November) or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, are also banned.

10. Even during the 2022 economic and political crisis which engulfed Sri Lanka, on 12 May 2022, during a State of Emergency, police told Tamils gathered to commemorate wartime dead in Mullivaikkal, that the police had orders to shoot anyone engaging in robbery or property damage.[4]

    [4] ‘“We have orders to shoot” – Sri Lankan police threaten Tamils gathering in Mullaitivu’, Tamil Guardian, 12 May 2022, 20220513162745.

11. It was reported on 15 January 2023 in Newsfirst’s online edition,[5] that the police fired water cannons to disperse a group of protesters in Nallur. The report further states that the protest was organised in line with President Ranil Wickremesinghe’s visit to the Nallur Kovil in Jaffna for Thai Pongal celebrations. The protest march began from the Jaffna University and proceeded towards the Nallur Kandaswamy Kovil, a famous temple complex, which is sacred for Sri Lankan Hindus, most of whom are Tamil by ethnicity. The site has significance among Tamil separatists as it recalls the days of when Nallur was the capital of Jaffna Kingdom (years 1215-1624). The march was met with police presence at the Arasi Adi road, where water cannons were fired to disperse protestors. The protest march was organised to demand justice for the families of the disappeared during the time of the civil war.

    [5] Protest in Nallur, Jaffna ends. Police fired water cannons earlier to disperse the protests, by Sandro Sathyajith, Newsfirst.lk, 15 January 2023, <>

    The issue of enforced disappearances of Tamils during the civil war and in the immediate post-conflict era remains a sensitive issue even after the mass protests, beginning in March 2022, led to the removal of the Rajapaksas from government. While the Rajapaksas were accused of being architects of the ‘white van abductions’ to silence critics, families of the forcibly disappeared continue to face legal and political roadblocks and intimidation. According to the report of the Office of the United Nations High Commissioner on Human Rights (OHCHR) on the situation of human rights in Sri Lanka, the OHCHR continues to receive reports of surveillance, intimidation and harassment of journalists, human rights defenders, families of the disappeared and persons involved in memorialisation initiatives by intelligence services, the military and the police, in particular in the north and east.[6]

    [6] Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka (4 October 2022) A/HRC/49/9, para. 27.

12. The Tamil Guardian[7] reported that alongside 9 protesters and the assaults of protesters by the authorities, a Member of Parliament representing the Tamil National People’s Front (TNPF), Selvarajah Kajendren, was forcibly dragged away by armed police. (TNPF is a breakaway party from the mainstream TNA and advocates a policy of ‘two nations in one country’ or bi-nationalism, rejecting Sri Lanka’s unitary state structures under the current constitution.[8])

    [7] TNPF MP Kajendren arrested alongside peaceful protesters, 11 February 2023, Tamil Guardian, TNPF For ‘Two-Nations in One Country’: Gajendrakumar Ponnambalam – Colombo Telegraph, 30 August 2015.

13. It is accepted that the applicant has been involved in commemorative events in Australia and that he would attend such ceremonies with other Tamil Sri Lankans who share his political outlook, should he be sufficiently safe to attend and this has invited the Tribunal to consider the operation of s 5J(3) insofar as whether it is reasonable for the applicant to modify his behaviour in order to avoid persecution based on his political opinion in favour of honouring the fallen Tamils during the civil war and against the ongoing injustices towards Tamil families of the disappeared.

14. Section 5J(3) seems to have its origin in the principle developed under the Convention definition of refugee, as interpreted by the High Court in Appellant S395/2002 v MIMA (S395), that an applicant cannot be required to take steps, reasonable or otherwise, to avoid offending his or her persecutors, or to modify some attribute or characteristic to avoid persecution.[9] According to S395, where an applicant would act discreetly or modify their behaviour upon return, it would be an error for a decision-maker to fail to ask why they would do so, and what would happen to them if they did not do so. If the reason for the modification is the applicant’s fear of persecution, and that fear is well-founded, then the person may be a refugee within the meaning of art 1A(2). The principle in S395 has been held to continue to apply under the codified refugee provisions, specifically whether an applicant faces a real chance of being persecuted under s 5J(1)(b).[10]

    [9] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], [80]. See also the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.174 at [1194].

    [10] ESD17 v MIBP [2018] FCA 1716 at [28]–[29]. See also MIBP v BBS16 (2017) 257 FCR 111 where the Full Federal Court proceeded on the basis that the principle in S395 applied to the codified refugee provisions but did not expressly engage with this question (see, e.g. [82]).

15. In S395 the Tribunal had found that the applicants were homosexuals, that homosexual men in Bangladesh were a particular social group, and that such people could not live openly without facing a range of problems including, for example, the possibility of being bashed by the police. However, it found that the appellants had lived discreetly without experiencing any more than minor problems with anyone outside their own families and that they would live discreetly in the future if returned to Bangladesh. Consequently, they would not suffer serious harm and therefore did not have a well-founded fear of persecution. By majority,[11] the Court held that the Tribunal had erred by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution, and further, by failing to consider whether the appellants might suffer serious harm if members of the Bangladeshi community discovered that they were homosexuals.

    [11] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh, Kirby, Gummow and Hayne JJ, with Gleeson CJ, Callinan and Heydon JJ dissenting essentially because of their different view of the case the appellants had sought to make.

16. Justices McHugh and Kirby explained that:

    [t]he Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.[12]

    [12] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], [80].

17. The Tribunal therefore exercises caution in determining that the applicant may avoid persecution by changing his behaviour in a way that does not require modification of a nexus-related attribute under the Convention or under s 5J(1)(a), which in this case is the applicant’s political opinion in favour of honouring the deaths of Tamil separatists during Sri Lanka’s civil war and his imputed political opinion in favour of Tamil separatism.

18. Attendance at Nullar Kovil protests, the 12 May Remembrance event or other commemorations for the Tamils who have fallen during the civil war in Sri Lanka are therefore relevant in the Tribunal’s assessment about a well-founded fear of persecution. Such commemorative ceremonies cannot be performed privately or discreetly. They inherently involve anti-government political opinion about a range of unresolved post-conflict issues between Tamils and ruling elements of the Sinhalese. Some are lawful while the lawful status of others is uncertain. The view among many in authority and among Sinhalese Sri Lankans in general is that such commemorations and protests, whether they are peaceful or lawful or not, are provocative, counterproductive in building national unity and/or demonstrative of pro-LTTE or separatist political opinions. Arrests, threats of persecution or ‘shoot to kill’ orders under the auspices of states of emergency or any other pretext are designed to create a chilling effect on political expression.

19. With s 5J(3)(c)(iii) in mind, the Tribunal makes the finding that the applicant has a well-founded fear of persecution as he would be taking unreasonable steps to modify his behaviour so as to avoid a real chance of persecution in Sri Lanka which would conflict with his conscience and conceal his true political beliefs.

20. It follows from this that the applicant has a well-founded fear of persecution based on his political opinion that satisfies s 5J(1)(a) and (b).

21. Also, as the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and that the real chance of persecution relates to all areas of Sri Lanka.

22. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is well-founded and for a reason which satisfies s 5J(1)(a), (b) and (c) and s 5J(2).

23. The Tribunal accordingly finds that because of being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer serious harm by reason of him being imputed to be connected with Tamil separatism and meets s 36(2(a).

    Conclusion

24. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

100.   As mentioned above, the third country protection provisions in the Act are not relevant in this decision.

DECISION

101. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Brendan Darcy
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.

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