1719625 (Refugee)

1719625 (Refugee) [2022] AATA 2660 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1719625

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Joseph Lindsay
DATE:27 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 27 June 2022 at 2:16pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected links to Liberation Tigers of Tamil Eelam – particular social group – failed asylum seekers – deaths of family members – detention – torture – fears of Eelam People’s Democratic Party (EPDP) – credibility issues – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 August 2017 to refuse to grant the applicant a Safe Haven Enterprise (SHEV) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who is a citizen of Sri Lanka, arrived in Australia [in] September 2011 by boat. The applicant applied for the SHEV on 29 September 2015.
The applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
A copy of the delegate’s decision dated 16 August 2017 refusing the applicant’s current application for a SHEV was provided to the Tribunal by the applicant.
CRITERIA FOR A PROTECTION VISA
In making this decision, the Tribunal has had regard to the criteria for a protection visa and mandatory considerations as set out in Annexure A to this decision.
CLAIMS FOR PROTECTION AND EVIDENCE PROVIDED TO THE TRIBUNAL
As stated in the delegate’s decision, the applicant’s migration history is as follows:
The applicant arrived in Australia undocumented on a vessel codenamed '[name]' [in] September 2011. He was found to be owned protection through a Protection Obligation Evaluation process, assessment signed 27 March 2012. This assessment found that the applicant would not be a person of immediate interest on return to Sri Lanka, even though he had been questioned by the SLA, monitored and accused of LTTE involvement in the past. This was based on his ability to depart Sri Lanka and return, on his own passport, without incident during that period. However, country information considered in that assessment supported a finding that if the applicant was detained on return, the prevailing environment at the time was such that his chance of persecution would be remote. The applicant lodged his current application for a Safe Haven Enterprise Visa (SHEV XE- 790) on the 29 September 2015.
In its own consideration of the applicant’s SHEV application, the Tribunal reviewed the following claims (in summary):
-He is a Sri Lankan male of Tamil background.
-Sometime in 2006 he was studying and working part time in a [business 1] owned by his [named Relative A].
-In around July 2006, [Relative A] was kidnapped by the Sri Lankan Army (SLA) from the [business 1]. After a search, [Relative A’s] body was found, but his head was missing. The applicant believes that SLA personnel were responsible for [Relative A’s] death.
-After [Relative A’s] death, one of his friends set fire to an SLA army camp in revenge, but neither the applicant nor the applicant’s family had any involvement in this incident. Despite this, the SLA closed down the [business 1], and then came to the applicant’s home and questioned his family about the burning of the army camp. While none of the family were arrested on this occasion, the applicant believes that the incident created an “adverse identity” for the applicant and his family members in the eyes of the SLA.
-The applicant went to stay with his [Relative B] in [Town 1] because he feared the SLA.
-[In] November 2006, one of his [Relative B’s family], [Relative C], was shot by the Liberation Tigers of Tamil Eelam (LTTE) at her family home in [Town 1]. The LTTE left a “letter of responsibility” confirming the killing. The applicant did not witness the killing. After this, the SLA called the applicant and asked him if he knew who shot [Relative C], but he did not say anything about the shooting because if he identified the LTTE, he was afraid that the LTTE would take revenge on him or his family.
-After this, the SLA detained the applicant and one of his [Relative D’s] friends. The applicant and one of his [Relative D’s] friends were taken by the SLA because they suspected they were linked to the LTTE. The applicant claimed the members of the SLA kicked, punched and hit him. He claimed that members of the SLA squeezed his genitals, causing him a lot of pain. He claimed that the SLA eventually released him, but they advised that he must continue reporting to the SLA. The applicant then reported to the SLA several times whenever they called. The applicant believes his actions further developed his identity in the eyes of the SLA.
-He left Sri Lanka and went to [Country 1] in 2007 to further his studies and also because the SLA were regularly detaining and torturing him.
-In 2008, the applicant returned to Sri Lanka and went to work for [Employer 1], but he did not go back to Jaffna.
-In around April 2009, he went to his brother’s wedding in Jaffna, but when he was there his clearance expired and he had to get another clearance from the Sri Lankan authorities. However, he was not given another clearance. He was told the SLA were doing further security checks on him. He claimed that he felt that he clearly had an identity in the eyes of the Sri Lankan authorities, but the SLA did not harm him.
-He claimed that there was one occasion where he was sick and needed to go to hospital. As he was making his way to the hospital, he went through an SLA checkpoint. He claimed that when he was at the checkpoint, he had his identification taken away, and was detained and threatened for about four to five hours. He stated he was shown several photos and asked if he knew the identities of the individuals in the photos. He claimed the SLA members accused him of being an LTTE supporter and asked him about the “old” incidents (i.e. his family members’ deaths). He claimed that a person that was “passing by” saw him and told his parents. He claimed his parents were able to arrange for his release.
-He claimed he went to the Eelam People’s Democratic Party (EPDP) and paid them a bribe to issue him a clearance. He claimed that once he obtained his clearance, he decided to leave Sri Lanka because he did not believe his life was safe.
-[In] November 2009 he travelled to Trincomalee using his clearance. He remained there for one day before collecting his things and travelling to Colombo. He departed Colombo by plane and travelled to [Country 2].
-He claimed that since he has been in Australia on several occasions the authorities, usually the SLA, have come to his house checking residence details. He claimed that on each of these occasions, the SLA questioned his family about his whereabouts in detail, noting his absence.
-He claimed he would be harmed by the Sir Lankan authorities if he returned to Sri Lanka because he is a Tamil and because of his imputed political opinion of supporting the LTTE. He claimed he also feared being harmed because he was a failed asylum seeker.
In the hearing, the Tribunal discussed the applicant’s claims, the current circumstances and the relevant country information as detailed in the DFAT Country Information Report for Sri Lanka dated 23 December 2021.
In respect to his claims, the applicant spoke at length about why he left Sri Lanka and the events that took place, to which he had referred in his written claims.
The applicant maintained that he had not been involved in any kind of activity, illegal or otherwise, against the Sri Lankan authorities. He said he had no family in Australia.
The applicant expanded on his claims. He claimed that just before he left Sri Lanka, he was held in a camp for about three months, and while he was held there he was beaten, tortured and questioned by the Sri Lankan authorities. He said the reason why the Sri Lankan authorities treated him this way is because they thought he could provide useful information to them about the LTTE.
When asked why he thought he was a person of interest to the Sri Lankan authorities, the applicant recounted his time working at his [Relative D’s] [business 1] and the events that took place around that time. He spoke about how it was him that found his [Relative A’s] headless body. He maintained that he had no involvement in setting fire to the SLA camp, but that he was nevertheless beaten when the SLA members questioned him about the fire damage to the SLA camp.
The applicant gave evidence in respect to the shooting of [Relative C]. The applicant said that after the shooting, he discovered that the person who shot [Relative C] was a high-profile person in the LTTE. The applicant said that the SLA thought he could give them information about who was supplying weapons and materials to the LTTE, and even though he knew who the people were who supplied the LTTE, he did not tell the SLA anything.
The Tribunal spoke with the applicant about the written submissions he provided prior to the hearing. Notably, the applicant indicated that he had new claims to make. In his letter dated 22 May 2022 he stated, in summary, that he had new claims to make, and that he did not previously make these claims because he was afraid.
The Tribunal notes that in the written submissions, the applicant has described his [Relative A] as having the name “[specified].” However, because the spelling “[Relative A name]” has been previously used to identify this person, the Tribunal will continue to use the spelling “[Relative A].” In his recent submissions, the applicant advanced the following claims (in summary):
-When he worked at his [Relative D’s] [business 1], LTTE militants visited the [business 1] and had “secret meetings” inside a private room with [Relative A] and his [Relative D] without the knowledge of the SLA or Criminal Investigation Department (CID).
-While he was assisting [Relative A] and other employees to unload [product 1] from the lorries into the shed, the applicant found black plastic bags falling out of the interior parts of the [product 1]. [Relative A] told the applicant the bags contained drugs, and the drugs were held under the orders of the LTTE. At [Relative A’s] request, the applicant hid the drugs.
-The applicant told his father and brother about the drugs, and his father and brother said that [Relative A] could not act against the LTTE orders, and that his [Relative D] could not stop the LTTE using his [business 1].
-A few months later, the applicant found arms and ammunitions hidden inside some [product 1], and this put him in great fear. He said he did not wish to continue working for [Relative A], but as he was in fear of being recruited by the LTTE, he felt that he would be protected by his [Relative D] and [Relative A] who knew the LTTE militants.
-In July 2006, when [Relative A] was kidnapped by the SLA and killed, the applicant started to fear for his life.
-After [Relative A’s] death, the SLA camp was burnt down, and then the SLA closed down the [business 1] and questioned the applicant about the burning of the army camp. The SLA suspected the applicant of causing the fire because he was working at the [business 1] with [Relative A].
-The SLA was only interested in the applicant and was not interested in his family members. The LTTE was also investigating the applicant who passed on the information about their drug and arms dealing to the SLA. The applicant’s [Relative B’s family member] ([Relative C]) who worked for the EPDP, had leaked this information and the LTTE shot and killed her. The SLA asked the applicant who shot [Relative C], and in fear of getting involved in the SLA investigation, and/ or getting shot by the LTTE, the applicant endured “all the torture” but maintained that he was a part-time worker and had no knowledge.
-The EPDP paramilitaries were aware through [Relative C] that the applicant had been assisting [Relative A] in drug and arms smuggling for the LTTE. For this reason, the applicant was repeatedly questioned and ordered to report at the army camp. The applicant’s [Relative D] was released after “severe torture.”
-Every time the applicant reported to the camp, he was repeatedly questioned about his involvement in the LTTE, whether he had been a militant and involved in arms and drug smuggling, where he travelled to collect the arms and drugs, whether he burnt the SLA camp and who else burnt the SLA camp along with him. However, he denied any involvement and told the SLA he was studying and was working a couple of days at the [business 1] and never saw anything related to drug or arms smuggling.
-Due to frequent interrogations, the applicant left Sri Lanka to go to [Country 1] and when his parents informed him that it was safe to return to Sri Lanka, he came back to Sri Lanka but had the fear that the EPDP paramilitaries could identify him to the SLA about his involvement in arms and drug handling at the [business 1].
-Every time he was questioned whether his [Relative D] was also involved in arms and drug smuggling, he denied this because he never wished to let down his [Relative D] who saved him from the LTTE militants who approached him and forced him to take up arms to fight the SLA (Tribunal emphasis). The applicant then fled to [Country 2].
-When he lodged his SHEV application, the applicant thought that if he mentioned the above facts in his original claims, he could be found as an arms and drug trafficker and could be deported back to Sri Lanka by the next plane (Tribunal emphasis).
-Because he never dealt with the LTTE directly (Tribunal emphasis), he had no idea where the arms and drugs came from. The applicant claimed that he was an innocent victim of his circumstances.
-After witnessing the death of [Relative A], and after the LTTE shot and killed [Relative C], the applicant claimed he wanted to save himself from the SLA. The applicant claimed that [Relative A] and his [Relative D] asked him to be secretive as to arms and drugs found inside the [product 1] arriving at the [business 1], and they said that the LTTE militants were warning them to keep this matter secret and if any of them leaked the information about the LTTE drug trafficking, they would be shot and killed.
-The applicant then went to Jaffna for his brother’s wedding from Trincomalee. The applicant claimed he was identified by the EPDP paramilitaries as an LTTE militant and was arrested by the SLA and was detained at the army camp and was tortured and interrogated as to his involvement in arms and drugs smuggling for the LTTE and for burning the SLA camp [near Town 1] and for ordering the LTTE militants to shoot [Relative C] (an EPDP member) and who was aware of his arms and drug dealing for the LTTE at the [business 1] (Tribunal emphasis).
-The applicant claimed he was detained for nearly three months at the camp and was subject to inhuman treatment including sexual abuse, torture and humiliation (Tribunal emphasis).
-The applicant claimed that he escaped the camp, and then fled Sri Lanka, because one of the EPDP paramilitaries who was at the SLA camp “came forward” to release him for a considerable sum of money to bribe the senior SLA officer.
The applicant asserted that the Sri Lankan government still suspects that the former LTTE militants and the “rehabilitated” LTTE militants in Sri Lanka are planning to regroup as an LTTE force.
The applicant asserted that after he arrived in Australia, his father was repeatedly questioned by the SLA and CID as to his involvement in arms and drug trafficking. The applicant claimed that his father was taken for questioning numerous times and was tortured but he never accepted that the applicant was personally involved in arms and drug trafficking for the LTTE. The applicant stated that his father fell ill and died in November 2021, but when his family attempted to cremate his father at the cemetery, the EPDP paramilitaries and the locals arrived at the cemetery and hit his father’s dead body with “logs and sticks” and his family members were ordered to take his father’s dead body away. He stated that his father’s body was later cremated in the backyard of the family home, and that during the cremation the EPDP paramilitaries were waiting outside the property and vowed to kill the applicant should he ever return to Sri Lanka, claiming that the applicant was responsible for [Relative C’s] death.
The applicant asserted that he was concerned that the current economic crisis in Sri Lanka has put the Tamils in greater risk, where politicians could instigate violence against the Tamils and could encourage the anti-government protesters to attack the Tamils.
The applicant asserted that the Tamils in the north and east are maintaining silence with the fear that if a new government is formed, they could pass laws for the majority Sinhalese and could ignore the Tamils’ aspirations and would direct the SLA to control the provinces.
The applicant asserted that once the Sinhalese people are given the government they wish, the SLA would be directed towards Jaffna, Batticaloa and Trincomalee to have full control of the areas to stop the LTTE regrouping.
The applicant asserted that Tamil parliamentarians are cautious to speak about the Tamil’s sufferance as the anti-government protesters could rise against the Tamils and could burn the Tamil homes and their possessions.
In the hearing the Tribunal spoke with the applicant about the most recent DFAT Country Information Report for Sri Lanka dated 23 December 2021. The Tribunal put to the applicant that the information in the DFAT report indicated that the applicant, in his circumstances, may face a risk of monitoring, but given the significant lapse of time since he left Sri Lanka, he may be unlikely to face either a real chance of serious harm or a real risk of significant harm if he returned to Sri Lanka in the foreseeable future. In response, the applicant made reference to his more recent written submissions to the Tribunal.
The Tribunal then spoke with the applicant about his expanded claims and the country information he provided. However, the Tribunal put its preliminary concerns to the applicant about the credibility of his new claims that had not been provided to the delegate and had only been made prior to the hearing. When questioned as to the reasons why he had changed his claims, the applicant said he was scared before. The Tribunal put to the applicant that it may not accept the applicant’s explanation as to why he had changed his claims because the applicant had many years in Australia in which he had time to change his claims before the present time. In response, the applicant said he had no other option, and if he went back to Sri Lanka he would have a “serious problem.” When asked what serious problem he thought he would have if he went back to Sri Lanka, the applicant said “they” can identify him and take him back to the camp and do anything they like to him. The Tribunal put to the applicant that noting the DFAT report the Tribunal may accept that the Sri Lankan authorities may monitor the applicant on his return to Sri Lanka, but may not accept that the Sri Lankan authorities would be likely to take him away to a camp or simply do “anything they like” to him. The applicant responded that it was a “threat” to his life because he had been away from Sri Lanka for about 10 years. He said there were a lot of problems happening in Sri Lanka. The Tribunal put to the applicant that the Tribunal was aware of the economic issues currently occurring in Sri Lanka. The applicant said he was not talking about the economic issues. He said there were people in the LTTE who had gone through rehabilitation and been subjected to beatings, and taken back to camps and were asked for money. He said his father was also beaten. The Tribunal put to the applicant that the Tribunal may find that the applicant had embellished his claims in respect to his recent claims about his father. The applicant said that “they” came after his father after he came to Australia. The applicant then said that his main concern was in respect to the EPDP, because he then claimed that the EPDP were responsible for beating his father to death. He said that he did not make this claim in his written statement, but he had proof that his father was beaten. When the Tribunal asked for the “proof” that his father had been beaten, the applicant said he had given the photos about the “trouble” at his father’s funeral. The Tribunal again put to the applicant that it may find he had embellished his recent claims in respect to his father’s treatment. In response the applicant said that his father had not shared a lot of “these things” with him because the applicant would “be sad” and, also, the applicant did not go to his mother’s funeral either because the applicant had been in Australia for the last 11 years. The applicant then said that “they” were after his father, and “they” arrested his father, beat him, asked him for money, and asked where his son was. The Tribunal put to the applicant that the Tribunal may find that his claims were not supported by the country information in the DFAT report. The applicant said in response that “a lot of things are happening there.” The Tribunal asked the applicant if he wished to talk about the current economic circumstances in Sri Lanka. In response, the applicant said that “Tamil people are not participating in that current problem.” He said the problem was that if the Tamil people go and get involved in “those issues”, that would be a problem “when the government forms.”

When asked who he was primarily fearful of, the applicant said he feared the EPDP and “the authorities.” The applicant denied ever being involved in drug or arms trafficking. The applicant said there were no further claims he wanted to make.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal holds concerns about the applicant’s credibility in respect to his more recent protection claims.
Firstly, the Tribunal has great concerns about the credibility of the applicant’s more recent claims about his father. The Tribunal has considered the documentary information the applicant provided to the Tribunal in this respect. There are several scanned, but relatively poor quality, images of what appears to be some men around a fire. The Tribunal accepts that the images could be of a funeral pyre. However, based on the documentary evidence, the Tribunal is not satisfied that the images are necessarily of the applicant’s father’s funeral, and the Tribunal is not satisfied that the applicant’s father was beaten by anyone, let alone beaten to death by members of the EPDP. The Tribunal is not satisfied that the applicant’s father was taken for questioning numerous times or was tortured by anyone. The Tribunal accepts that the images show some people holding what appear to be sticks, but again the Tribunal is not reasonably satisfied that the applicant’s father was beaten by anyone, let alone beaten to death by members of the EPDP. Likewise, the Tribunal is not reasonably satisfied that the EPDP paramilitaries were waiting outside the property where his father was cremated, or that EPDP paramilitaries or anyone else “vowed” to kill the applicant should he ever return to Sri Lanka. In summary, the Tribunal is not satisfied as to the credibility of any aspect of these more recent claims about his father’s treatment in Sri Lanka, and finds these claims in their entirety are embellished and not credible.
Secondly, the Tribunal has great concerns about the credibility of the applicant’s more recent claims about proximity to, and associated connection to, illegal drugs and arms (or weapons) in connection with the LTTE, or that he was approached by the LTTE to take up arms and fight the SLA, when he was in Sri Lanka. The Tribunal has considered the applicant’s explanation as to why he did not make such claims to the delegate, and why he waited until just before the hearing to make these new claims. The Tribunal notes that the applicant said he was scared about doing so before, and that he feared that he could be found as an arms and drug trafficker and could be deported back to Sri Lanka. However, the Tribunal is not satisfied by this explanation. The applicant has maintained to the Tribunal that he was not involved in drugs or weapons trafficking in Sri Lanka. The Tribunal is not satisfied that the applicant was involved in drugs or weapons trafficking in Sri Lanka, or that there is any reasonable imputation that he was involved in drugs or weapons trafficking in Sri Lanka. The Tribunal is not satisfied that the applicant has had proximity to, and associated connection to, illegal drugs and arms (or weapons) in connection with the LTTE, or that he was approached by the LTTE to take up arms and fight the SLA, when he was in Sri Lanka, and finds these claims are embellished and not credible.
In respect to the applicant’s original claims, the Tribunal found the applicant’s evidence surrounding those claims to be persuasive, consistent and convincing. Accordingly, the Tribunal is satisfied that the applicant’s [Relative A, named], was killed by the SLA. The Tribunal is satisfied that the applicant’s other [Relative C], was killed by the LTTE. The Tribunal is satisfied that the applicant’s other relative, [named] was also killed by the SLA. The Tribunal is satisfied that the applicant himself was detained and was subjected to abuse by the SLA.
The Tribunal accepts that the applicant, by mere proximity and family connection, had some degree of proximity to the activities of the LTTE. However, in respect to the applicant’s risk profile, the Tribunal is not satisfied that the applicant was of sufficient interest to the Sri Lankan authorities, even taking into account corruption of the Sri Lankan authorities. The Tribunal is not satisfied as to the credibility of the applicant’s claim that he escaped the camp, and then fled Sri Lanka, because one of the EPDP paramilitaries who was at the SLA camp “came forward” to release him for a considerable sum of money to bribe the senior SLA officer, and finds these claims are embellished and not credible. The Tribunal finds that if the applicant genuinely was of interest to the Sri Lankan authorities, he would not have been allowed to leave Sri Lanka.
In respect to the applicant’s concerns about the risk of harm to himself from the EPDP, or the EPDP paramilitaries, the Tribunal is not satisfied that the applicant has a well-founded fear in this respect. The applicant’s claims as to exactly why he thought the EPDP would wish to harm him are convoluted and are not convincing. In his claims in his SHEV application, the applicant indicated that his brother assisted him by paying money to the EPDP in order to gain clearance to leave. Later, the applicant indicated that he himself went to the EPDP and paid a bribe in order to be issued with a clearance to leave his area. In his claims in his SHEV application, the applicant did not claim to fear the EPDP. Yet in his written claims dated 12 May 2022, the applicant changed his claims to indicated that he did fear the EPDP. The Tribunal finds the applicant’s more recent claims that he was identified by the EPDP paramilitaries as an LTTE militant to be unconvincing and not credible. The Tribunal finds the applicant’s more recent claims that he had any adverse interaction with, or adverse interest from, the EPDP or the EPDP paramilitaries to be unconvincing and not credible.
Following on from these credibility concerns, the Tribunal also has concerns about the applicant’s claims that the Sri Lankan authorities have regularly been in contact with the applicant’s family since he left Sri Lanka. The Tribunal does not accept that these claims are plausible or credible – that some 11 years after he left Sri Lanka that the Sri Lankan authorities still contact his family asking about the applicant.
In respect to the above, the Tribunal fully understands that the applicant is motivated to stay in Australia – again, where he has been for some 11 years of his life, and the Tribunal fully understands the pressures he may feel to embellish aspects of his claims in an attempt to improve his chances of being successful in the grant of the visa. But this should not be a sufficient reason to simply accept every embellished aspect of the applicant’s claims. The Tribunal in no way doubts that the applicant had good reasons to leave Sri Lanka at the time he left Sri Lanka. However, this is a forward-looking test, and the Tribunal must consider whether the applicant faces either a real chance of serious harm or a real risk of significant harm should the applicant return to Sri Lanka in the foreseeable future.
The Tribunal has considered the applicant’s claim that he fears harm because he is a Tamil. The Tribunal accepts the applicant is a Tamil. The Tribunal has considered the DFAT Country Information Report for Sri Lanka dated 23 December 2021 in respect to this matter, particularly paragraphs 3.4 to 3.13. What the DFAT report does not say is that Tamils will be killed or face a real chance of serious harm or a real risk of significant harm if they return to Sri Lanka.
The DFAT report does state that many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. That is not in dispute. The DFAT report states that 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. That is not in dispute.
The DFAT report states 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. 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. That is not in dispute.
The DFAT report states that Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA). The DFAT report refers to an incident in May 2021 when Tamils who tried to commemorate the end of the civil war were harassed or arrested by police, and that 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.
Paragraph 3.13 of the DFAT report states:
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 (Tribunal emphasis), and that ordinary Tamils living in the north and east of Sri Lanka are at low risk (Tribunal emphasis) of official harassment.
The Tribunal has considered the applicant’s response in the hearing, as well as the concerns raised in the written submissions. However, the current situation is different in Sri Lanka than during the civil war. Let that be repeated: the current situation is different in Sri Lanka than during the civil war. The point being that the Tribunal is obliged to consider a forward-looking test based on the available information.
The Tribunal has considered whether the Sri Lankan authorities are likely to subject Tamils, especially those who they suspect to be LTTE affiliates, to serious and significant harm.
The Tribunal has considered whether the Sri Lankan authorities are likely to misuse their power and use the PTA adversely especially against Tamils. However, the DFAT report does not concretely support a reasonable finding in respect to the alleged level of chance of harm or risk of harm to Tamils from the Sri Lankan authorities – merely because they are Tamils.
The Tribunal has comprehensively considered all of the information before it – including all parts of the DFAT report. The Tribunal has considered the potential that the full extent of the situation for Tamils and LTTE affiliates in Sri Lanka is not fully clear given the circumstances in Sri Lanka.
The Tribunal has considered the reference in the DFAT report to the term “ordinary Tamils” in its risk assessment, and the likelihood of the applicant being considered to be something other than an “ordinary” Tamil due to his experiences when he was in Sri Lanka, as accepted by this Tribunal in the discussion above.
Again, the Tribunal is not satisfied that the applicant has had proximity to, and associated connection to, illegal drugs and arms (or weapons) in connection with the LTTE, or that he was approached by the LTTE to take up arms and fight the SLA, when he was in Sri Lanka.
The issue is therefore: if the applicant is not an “ordinary Tamil”, what is he? The term “ordinary Tamil” is not defined in the DFAT report. Paragraph 3.38 of the DFAT report states:
Sri Lanka has held regular democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members (Tribunal emphasis). There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers.
The reality is that many Tamils were detained, monitored, required to report daily and fled Sri Lanka after the end of the civil war and have remained abroad for many years, but the Tribunal is not persuaded that the country information conclusively shows that such people face either a real chance of serious harm or a real risk of significant harm should they return to Sri Lanka in the foreseeable future.
The Tribunal has considered whether the applicant’s connection, or imputed or perceived connection to the LTTE, would be the more significant reason as to why the Sri Lankan authorities would have an interest in the applicant if he returned to Sri Lanka and the potential for the Sri Lankan authorities to harm the applicant if he returned to Sri Lanka. Again, and respectfully, the Tribunal does not accept that information in the DFAT report reasonably supports such a conclusion in respect to the applicant’s claimed level of harm he believes he would face if he returned to Sri Lanka. The DFAT report discusses these LTTE-related issues at length.
Paragraphs 3.41–3.43 of the DFAT report in part state:
3.41 While the LTTE was comprehensively defeated (Tribunal emphasis), Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, (Tribunal emphasis) including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
3.42 Former LTTE members face no legal barriers to participating in public life, including politics (Tribunal emphasis).
…
3.43 The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. 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 (Tribunal emphasis). Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.
The Tribunal has considered the information before the Tribunal in this respect. However, the Tribunal does not accept that the applicant was a member of an “ex-LTTE cadre” or that he is a current member of the LTTE, or that he ever was a member of the LTTE. The Tribunal accepts that the applicant may have been involved with other Tamils (Tamil diaspora) in Australia but does not accept that he has been involved in “LTTE-supportive behaviour.”
In any event, the Tribunal has considered the information in the DFAT report about the monitoring of former LTTE members as follows:
3.50 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. Testimonies provided to ITJP show that such harassment can include: frequent visits by police, visits to family members, threats and seizure of mobile devices.
3.51 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. Sources told DFAT that monitoring of former LTTE members was less extensive in the Eastern Province, insofar as many there had defected during the latter years of the war and aligned with the Government as part of the Karuna Group/TMVP (see Security situation in the north and east).
3.52 DFAT assesses 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 (Tribunal emphasis).
The point is: even Tamils that do have former links to the LTTE (and the Tribunal does not accept that the applicant has former links to the LTTE) and who are not politically active (and the Tribunal finds that the applicant is 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. Accordingly, the Tribunal accepts that the applicant is likely to be monitored by the Sri Lankan authorities should he return to Sri Lanka in the foreseeable future, but the Tribunal is not reasonably persuaded that the applicant would reasonably face either a real chance of serious harm or a real risk of significant harm for these reasons should he return to Sri Lanka in the foreseeable future.
The Tribunal has also considered whether the applicant may be at risk of being subjected to the PTA. The DFAT report goes into some detail about the PTA, from paragraphs 4.20 to 4.26 of the report. Paragraph 4.21 states that, as at the time of the report, it is estimated that 60 Tamils were being held under the PTA legislation – which is not a lot compared to the number of Tamils in Sri Lanka, let alone the Tamils that actually were actively involved in supporting the LTTE. Specifically, paragraph 4.23 states:
4.23 The PTA has also recently been used against Tamils (Tribunal emphasis). Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA (Tribunal emphasis).
Accordingly, given the information before the Tribunal, the Tribunal is not reasonably satisfied that the applicant’s risk of being subjected to the PTA should he return to Sri Lanka in the foreseeable future is such that he would reasonably face either a real chance of serious harm or a real risk of significant harm.

To recap, the Tribunal does not accept that the applicant would reasonably face either a real chance of serious harm or a real risk of significant harm on the basis of his Tamil “race.” In respect to the applicant’s “imputed political opinion” the Tribunal has considered whether the applicant’s “imputed” link, in some way, to the LTTE would reasonably persuade the Tribunal to find that he would reasonably face either a real chance of serious harm or a real risk of significant harm should he return to Sri Lanka in the foreseeable future. For the reasons detailed above, the Tribunal is not reasonably persuaded that the applicant’s “imputed political opinion” should he return to Sri Lanka in the foreseeable future is such that he would reasonably face either a real chance of serious harm or a real risk of significant harm.
In respect to the applicant’s status as a returnee from the West/failed asylum seeker, the Tribunal has considered the submissions as well as the information in the DFAT report, in particular, paragraphs 5.27 to 5.32 of the report. The Tribunal has considered whether the fact of the applicant fleeing to Australia and seeking asylum will increase his chances of being detained by the Sri Lankan authorities upon his return. The Tribunal has considered whether the Sri Lankan authorities are likely to be concerned that the applicant has spoken out about the mistreatment he suffered in Sri Lanka while living in Australia, particularly given he was detained and abused in the past. The Tribunal has considered the likelihood of the applicant being easily identifiable upon return to Sri Lanka as a failed asylum seeker especially given the prolonged period he has spent in a Western country and given he would return on a travel document. The DFAT report relevantly states:
Conditions for Returnees
5.27 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 (Tribunal emphasis). Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia (Tribunal emphasis). Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil (Tribunal emphasis). 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 (Tribunal emphasis).
5.28 Refugees and failed asylum seekers face practical challenges (Tribunal emphasis) to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
5.29 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 (Tribunal emphasis). 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 (Tribunal emphasis).
5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face (Tribunal emphasis). Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere (Tribunal emphasis).
5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. 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 (Tribunal emphasis).
5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities (Tribunal emphasis).
The Tribunal accepts the information in the DFAT report about the conditions for returnees, and places high weight on the information. However, the country information as detailed above, does not reasonably persuade the Tribunal that the applicant’s status as a “returnee from the West/failed asylum seeker” should he return to Sri Lanka in the foreseeable future is such that he would reasonably face either a real chance of serious harm or a real risk of significant harm.
The Tribunal has considered more recent information from the media about current circumstances in Sri Lanka. There are significant economic problems in Sri Lanka. Sri Lanka’s new Prime Minister, Ranil Wickremesinghe, has publicly stated that the Sri Lankan economy has completely collapsed.[1] In recent reporting, the Sri Lankan Prime Minister stated that Sri Lanka is unable to purchase imported fuel, even for cash, due to heavy debts owed by its petroleum corporation.[2] It has been recently reported:
Mr Wickremesinghe said on Wednesday that Sri Lanka would call China, India and Japan to a donor conference to drum up more foreign assistance and present an interim budget in August.
The budget seeks to put public finances on a more sustainable path and increase funds to the poor, who have been hardest hit, Mr Wickremesinghe told parliament.
"The interim budget will set the path forward," he said.
It comes amid ongoing negotiations with the International Monetary Fund (IMF), which is in Sri Lanka for talks on a bailout program.
"[The budget], together with an IMF program and debt sustainability, will lay the foundation for Sri Lanka to return to economic stability," Mr Wickremesinghe said.
The country already announced it is suspending repayment of $7 billion in foreign debt due for repayment this year, pending the outcome of negotiations with the IMF.
It must pay $5 billion on average annually until 2026.
The foreign currency crisis has resulted in massive shortages that have forced people to stand in long lines to buy essentials, including fuel, food and medicine.
[1] ABC News, 22 June 2022, Sri Lankan economy ‘completely collapsed’, Prime Minister says, accessed 23 June 2022.
[2] Ibid.
The Tribunal has considered media reporting about Sri Lanka’s changing political situation. On 11 May 2022 it was reported that the former Sri Lankan Prime Minister was moved to a Sri Lankan naval establishment for his safety after he resigned his role as Prime Minister, following violence targeting Mahinda Rajapaksa’s family for its role in Sri Lanka’s worst economic crisis.[3] More recently it has been reported that another member of the Rajapaksa family, the younger brother of Sri Lanka’s president and former finance minister, Basil Rajapaksa, has resigned from the Sri Lankan parliament.[4] Even more recently, it has been reported that the Sri Lankan cabinet has approved constitutional reforms that will limit the powers of the president in a move aimed at appeasing the protesters calling for President Gotabaya Rajapaksa to quit over the country’s worst economic crisis in decades.[5]
[3] The Canberra Times, 11 May 2022, Former Sri Lanka PM whisked to naval base, accessed 23 June 2022.
[4] ABC News, 9 June 2022, Sri Lanka president’s brother, Basil Rajapaksa, resigns from parliament amid economic crisis, accessed 23 June 2022.
[5] Al Jazeera, 21 June 2022, Sri Lanka cabinet moves to clip President Rajapaksa’s powers, accessed 23 June 2022.
However, the more recent events in Sri Lanka do not appear to indicate that the situation for Tamils is significantly deteriorating, or that the more recent events in Sri Lanka have caused a significant increase in Tamils being persecuted or harmed because they are Tamils, or generally anything to do with the LTTE and the previous civil war. The current economic circumstances appear to be affecting Sri Lankans across the board, regardless of their ethnic background.
However, the country information as detailed above, does not reasonably persuade the Tribunal that the applicant’s status as a Tamil or imputed political opinion as an LTTE supporter or as a “returnee from the West/failed asylum seeker” should he return to Sri Lanka in the foreseeable future is such that he would reasonably face either a real chance of serious harm or a real risk of significant harm.
The country information above does not reasonably persuade the Tribunal that the applicant, should he return to Sri Lanka in the foreseeable future, would reasonably face significant economic hardship that threatens his capacity to subsist; or a denial of access to basic services, where the denial threatens his capacity to subsist; or a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. However, in making these findings, the Tribunal remains concerned about the situation in Sri Lanka, particularly the economic situation and the potential for the situation to deteriorate. The reality is that this applicant has been in Australia now for some 11 years. He has no family in Australia. In all of the circumstances, the Tribunal respectfully refers this matter to the Minister for favourable consideration of Ministerial Intervention.
However, 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). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
Member
ANNEXURE A
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2022] AATA 2660

27 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness