1719818 (Refugee)

The applicant, who arrived in Australia as an irregular maritime arrival in July 2012, sought a protection visa. He claimed he would be persecuted by the Sri Lankan Government, army, or associated paramilitary groups due to his Tamil ethnicity and perceived association with the LTTE. The applicant alleged he was harassed by the Sri Lankan Army after witnessing the abduction of his uncle and subsequently reporting the incident. The matter came before the Tribunal, presided over by Member Frances Simmons.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a Convention reason, specifically political opinion and membership of a particular social group, should he be returned to Sri Lanka. This involved assessing the validity of a non-disclosure certificate issued under s.438(1)(a) of the Act, and considering extensive country information regarding the treatment of Tamils and individuals suspected of LTTE connections by Sri Lankan authorities.

The Tribunal found the s.438 certificate invalid, following the reasoning in *MZAFZ v MIBP*, as it merely cited "internal working documents and business affairs" as reasons for non-disclosure without specifying potential harm. Having regard to the evidence and country information, including reports from the UK Home Office and the UN Working Group on Arbitrary Detention, the Tribunal concluded that the applicant would face a high level of official scrutiny upon return to Sri Lanka. This, combined with factors such as the detention and torture of his brother, the disappearance of his uncle, and his promotion of Tamil separatism in Australia, created a real chance of serious harm. The Tribunal determined that such harm would be systematic and discriminatory, based on his Tamil ethnicity and perceived political opinion, thus constituting a well-founded fear of persecution for a Convention reason.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies s.36(2)(a) of the Migration Act, finding that Australia has protection obligations towards him under the Refugees Convention.