1721730 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse the applicant, a Sri Lankan citizen, a protection visa. The applicant arrived in Australia as an unauthorised maritime arrival in March 2011 and was later permitted to apply for a protection visa in Australia. The delegate refused to grant the applicant a Safe Haven Enterprise visa on 6 September 2017, leading to the applicant's application for review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant engaged Australia's protection obligations. This required determining if the applicant held a well-founded fear of persecution in Sri Lanka, either now or in the reasonably foreseeable future, based on membership of a particular social group or actual or imputed political opinion. Alternatively, the Tribunal considered whether the applicant met the criteria for complementary protection grounds if returned to Sri Lanka.

The Tribunal applied the criteria for a protection visa as set out in s.36 of the Migration Act 1958 and Schedule 2 of the Migration Regulations 1994. It considered the applicant's claims of fear from Sri Lankan authorities due to his Tamil race, imputed political opinion as a Liberation Tigers of Tamil Eelam supporter, and membership of a particular social group as a returnee from the West or a failed asylum seeker. The Tribunal also had regard to Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments. The Tribunal noted the applicant's responsibility to present all claims and evidence to the primary decision-maker, and the potential for adverse inferences if new claims or evidence were raised without reasonable explanation. The Tribunal also considered its practice directions regarding case completion and the conduct of reviews, including the use of telephone hearings during the COVID-19 pandemic.

The Tribunal concluded that the decision under review should be affirmed.