1721760 (Refugee)

1721760 (Refugee) [2023] AATA 1453 (24 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms KATHLEEN CLARE COFFEY (MARN: 1067518)
CASE NUMBER:  1721760
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Sheridan Lee
DATE:24 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 24 March 2023 at 10:18am
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – race – Tamil –membership of particular social groups – a returnee from the West/failed asylum seeker – a former LTTE member – imputed political opinions – applicant’s involvement with the LTTE would bring him to the adverse attention of Sri Lankan authorities – state protection will not be available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 46, 65, 91, 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 dependant.
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 12 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old Tamil Hindu man from Sri Lanka. He was born on [date] in Ampara District, Eastern Province, Sri Lanka and resided there until January 2007. The applicant moved to [City 1], Central Province, in January 2007 and resided there until March 2008. He then resided in [City 2], Eastern Province, from March 2008 until May 2010.
According to information provided during his entry interview, the applicant completed high school and one year of a certificate [in] Sri Lanka. He has two sisters, who are married and live in Sri Lanka. The applicant’s parents continue to live in Sri Lanka also.
The applicant departed Sri Lanka in June 2010 and travelled to [Country 1], where he stayed until October 2010. He travelled to Christmas Island by boat using the services of a people smuggler, arriving on [date] November 2010.
The applicant lodged a Refugee Selection Assessment Application on 21 January 2011. That was refused on 29 April 2011 and the applicant requested independent review of that decision on 19 May 2011. On 1 May 2012, the applicant was found to be owed protection by the Independent Protection Assessment Reviewer.
The applicant arrived on Christmas Island as an Unauthorised Maritime Arrival (UMA). Under s 46A(1) of the Act, an UMA cannot make a valid visa application in Australia. However, the applicant made a submission to the Minister under s 46A(2) of the Act and on 29 September 2015, the bar on making a valid visa application was lifted. He made the current visa application on 19 January 2016. The Temporary Protection Visa application was refused on 12 September 2017.
The applicant was represented in relation to the review.
Claims and evidence
On 15 December 2010, the applicant participated in an entry interview on Christmas Island. Additional information about the applicant’s claims was provided in the Refugee Selection Assessment Application, during the Independent Protection Assessment Review and in the Temporary Protection visa application.
The claims put forward by the applicant in his Temporary Protection Visa application can be summarised as follows:
·In June 2006, he was travelling with three friends to a Temple in [Town 1]. They were captured by the Liberation Tigers of Tamil Eelam (LTTE) and taken to their camp. After 10 days they tried to escape but were not successful. He was separated from his friends and placed in a dark room for a week and was badly beaten and abused.
·The LTTE forced him to undergo basic physical training for approximately 15 days but he did not undergo weapons training. They also trained the applicant to work for them as a [Occupation 1]. He remained working for them until the end of 2006, recording the personal details for new recruits. He feared that if he did not adhere to their demands he would be killed.
·He continued to work as a [Occupation 1] for the LTTE but was never involved in acts of violence. He was able to escape because the war escalated, but his involvement with the LTTE was noticed by the Sri Lankan authorities.
·Shortly after he escaped from the LTTE, a large battle broke out between the Sri Lankan Army and the LTTE. He was in [a town] at the time and called his parents. They told him that members of the Special Task Force (STF), which was a division of the Sri Lankan Army, and Karuna Group had been to their house asking about his whereabouts. News spread to his village that the applicant was working for the LTTE and the Sri Lankan Army assumed that he had willingly joined. The applicant claimed that they do this to all TamiI people as it gives them a reason to kill them. They threatened his family saying that they were going to kill him if he was found. He fled to [City 1] seeking safety and eventually [City 2]. He hoped he could resume a normal life there and undertook a [course].
·He returned home in April 2010 for a new year’s celebration. While home, the Karuna group came and arrested him. The Karuna group knew the applicant had worked for the LTTE and forced him to join or he would be shot. They threatened his mother, saying that if she went to the Police they would kill him. He was in the custody of the Karuna Group for almost a month before he escaped to [City 2] and then [Country 1] with the help of a family friend.
·Since he left Sri Lanka, the authorities have continuously visited his parents and asked about him. They told his parents that if he returns, he will be detained and punished.
·He fears harm because he has resided abroad for a long period of time and claimed asylum in Australia. He would be treated adversely due to his race, area of origin and his previous issues with the authorities. He would be treated adversely because he fled close to the end of the war and would be treated with a high level of suspicion.
·Sri Lanka continues to be a dangerous place for Tamils. The Sri Lankan authorities continue to commit human rights abuses in order to intimidate, coerce and punish Tamils.
·The authorities in Sri Lanka will not protect him because his is Tamil and they are Sinhalese. The Sri Lankan Army and the Karuna Group are working together with the government to rid Sri Lanka of Tamil people, especially those who have been involved in the LTTE. He believes there is ‘little doubt’ he will be killed if he returns.
·He has previously been subjected to cruel, inhuman, and degrading treatment and torture and he fears that he would be subjected to further significant harm on return. He would be detained on re-entry because of his involvement with the LTTE and he would be tortured by the authorities to get information.
·He cannot relocate anywhere in Sri Lanka because he is required to register where he moves, and the authorities would find out about his past.
The applicant was interviewed by the delegate on 1 September 2017. A recording of the interview was provided to the Tribunal by the Department.
On 12 September 2017, the delegate refused the application for a temporary protection visa. The decision of the delegate outlined that he did not accept that the applicant had been forcibly recruited or detained by the LTTE. In particular, the delegate had issues with the applicant’s account of how and when he was abducted.
The applicant significantly amended his evidence in respect of the training he was given by the LTTE. At first, he said that he had 15 days training, then 3 months and during the interview with the delegate, the applicant disclosed that he completed full military combat training that took around 6 months. The delegate felt that the applicant would have been sent into combat if he completed the full six months military combat training.
The delegate did not accept that the applicant would have been of interest to a paramilitary group, such as the Karuna group. The finding was premised on the earlier finding that the applicant did not have a significant involvement with the LTTE during the civil war. The delegate did not accept that the applicant was abducted by the Karuna group.
The delegate noted that the applicant departed Sri Lanka using genuine legal documents and processes. He found that the applicant would not be arbitrarily detained or harmed on return through the airport in Colombo.
Application for merits review
The applicant first appeared before the Tribunal on 18 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The Member that conducted the hearing has since departed the Tribunal. I have listened to a recording of the hearing. The applicant’s evidence will be discussed below where relevant.
At the first hearing, the Tribunal put to the applicant a summary of the claims based on the overview provided in the delegate’s decision (detailed above). The applicant confirmed this was a fair and accurate summary of his claims.
The applicant provided the following documents to the Tribunal in advance of the hearing:
·Statutory declaration dated 11 March 2022, providing an update to his claims and commenting on the delegate’s decision.
·Screen shots of four social media posts made by the applicant in memory of Tamils that died during the civil war. The posts were made in November 2015, May 2018 and January and March 2021.
·Legal submission in support of the applicant’s claims, dated 11 March 2022.
In his statutory declaration, the applicant commented on the decision of the delegate. He expressed the opinion that his evidence had been consistent. The applicant highlighted that he had been questioned numerous times and information can be relayed in a variety of ways using interpreters.
He confirmed that he travelled to a Hindu temple in [Town 1] and clarified that when he and his friends were returning from [Town 1], they saw motorbikes on the side of the road and stopped to see if the riders required assistance. He naively did not consider that the people stopped by the road could be LTTE. The applicant explained that after he stopped, the group was joined by armed cadres and he and his friends were forced to walk one kilometre through the jungle to an LTTE facility.
The applicant also confirmed that he undertook six months training with the LTTE. The statement outlined that when the applicant arrived in Australia, he was detained with another person that advised him not to disclose the true nature of his involvement with the LTTE because he would be treated adversely by the Australian authorities.
The statement reiterated that the applicant was detained by the Karuna group. He wasn’t killed because they hoped he would assist them. The applicant felt compelled to flee because the longer he remained in detention the greater the risk he would be killed.
The applicant outlined that he enlisted the assistance of a Sinhalese friend of his father to gain a passport. He expressed the opinion that he would not have secured a passport without assistance and said he believed they paid a bribe.
Finally, the applicant stated that he made posts on social media about Maty’s Day. He cares for the Tamil community and wants to ensure that those who sacrificed their lives for the community are remembered appropriately.
The applicant’s legal submissions outlined that he fears that he would be subjected to serious harm upon return to Sri Lanka, in the form of torture or death. The Applicant fears harm for the following reasons:
·Tamil Race
·Imputed Political Opinion
·Membership of a particular social group, a returnee from the West/failed asylum seeker.
Post-hearing submissions
The applicant was afforded two weeks to make post hearing submissions, extended to 5 April 2022 at the request of the applicant. The applicant’s representative made the following submissions post hearing addressing issues raised with the applicant at hearing:
·In response to concerns raised surrounding conduct in Australia and the operation of s 5J of the Act, the applicant’s conduct should not be disregarded on the basis that it is “highly conceivable” that the applicant wanted to pay his respect to members of his ethnic community who had lost their lives while fighting for their cause and therefore made social media posts and attended hero’s day commemorations. Because the applicant had previously been found to be owed protection, it is likely he believed that he would be granted a visa to remain in Australia. As such there was no incentive for him to engage in activity to strengthen his claims.
·In response to questions about the possibility of the applicant relocating to other areas in Sri Lanka, it was submitted that the applicant fears the authorities. He would be at risk no matter where he resides in Sri Lanka given they control the entire country. It was alleged that the applicant is likely to face harm upon re-entry to the country and would not be able to relocate to avoid harm.
·In response to concerns raised about inconsistent evidence provided at the hearing going to the applicant’s credibility, the applicant’s representative stated as follows:
We respectfully request the Tribunal take into consideration the factors outlined in our pre-hearing submission with respect to the assessment of credibility. Specifically, we note that the applicant stated at his hearing with the Tribunal and in his statement to the tribunal indicated [sic] that he underwent six months of training in Sri Lanka. We submit that the applicant’s explanation that he was scared to fully disclose the duration of his training previously is plausible. Moreover, we submit the applicant may have been apprehensive to disclose the extent of his weapons training. Further, given the applicant was taken by the LTTE, it is plausible he was forced to undergo training of this duration. Given these matters, we submit that it should be accepted the applicant underwent six months of training including weapons training and as such if he was forced to return, it is likely that he would be considered an LTTE affiliate by the Sri Lankan Authorities and be subject to serious harm.
·In response to country information raised with the applicant that suggests that Tamils in the North and East are no longer being harassed by the authorities, it was contended that the totality of country information before the Tribunal, including information raised in pre-hearing submissions, suggests that the Tamil community are facing Sinhilisation and continue to face difficulties in Sri Lanka. The applicant’s claims are multifaceted and need to be assessed cumulatively and it is clear that he faces a real risk of serious harm upon return to Sri Lanka due to his race and imputed political opinion.
·In response to country information raised with the applicant that suggests the prevention of Hero’s Day ceremonies in Sri Lanka was due to COVID-19 restrictions rather than a targeted act of authorities to prevent them, it was submitted that the country information suggests that these COVID-19 protocols were used as a guise to control people in Sri Lanka. The country information shows that it is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November) and Maaveerar Naal (Great Heroes Day in Tamil – 27 November), but some Tamils defy this ban. The public display of LTTE symbols is banned, including the LTTE flag and images of the LTTE leader, pointing to significant restrictions on Tamils commemorating the LTTE.
·Given the applicant’s background, it is likely he would be forced to undertake rehabilitation, be subject to arrest under the PTA, at risk of torture, monitored and harassed by authorities.
·Country information which suggests there would not be a risk to the applicant in Sri Lanka needs to be read with caution and cannot be relied upon to find the applicant can return to Sri Lanka having regard to information provided by the applicant. The accuracy of the latest DFAT report is likely to be impacted by COVID-19 restrictions, preventing their ability to monitor the situation fully, particularly in the North and the East of the country. An extract from a recent Human Rights Watch report was provided to establish his claim.[1] In the report, the United Nations High Commissioner for Human Rights documented discrimination against religious and ethnic minorities and security forces’ targeting of civil society groups. It was noted that accountability for past abuses had been blocked. It was reported that activists are subject to surveillance and required to seek approval for any activity. It was estimated that about 70 people had been arrested under the PTA for sharing social media posts commemorating victims of the war.
[1] Sri Lanka: Un Report describes alarming rights situation, Human Rights Watch, 3 March 2022,
Given the passage of time and the transfer of the application from one Member to another, the applicant was invited to participate in a second hearing on 25 January 2023. The applicant’s oral evidence will be discussed below where relevant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
CRITERIA FOR A PROTECTION VISA
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.
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.
EVALUATION AND FINDINGS
While I acknowledge that there were some discrepancies in the applicant’s evidence through the application and review process, I found the applicant’s claims and overall narrative to be generally consistent. The applicant responded to questions naturally and spontaneously through the Tribunal hearing and was visibly distressed when discussing the prospect of returning to Sri Lanka. The applicant was able to confidently explain many of the discrepancies highlighted in the decision of the delegate.
Nevertheless, I had some concerns with the applicant’s evidence in respect to how he was recruited into the LTTE and how he ended his involvement. I accept that he underwent training with the LTTE for a six-month period in 2006. I accept that the applicant was initially nervous about disclosing the nature of his involvement with the LTTE, which led to him downplaying that involvement when interviewed.
At the second Tribunal hearing, the applicant gave evidence that he most recently celebrated Heroes’ Day by attending an event [in] November 2022. He has also made several posts on social media to commemorate Tamils that fought in the war. I asked the applicant to provide further information about his support of Heroes’ Day as a person who claimed to have been forcibly recruited and detained by the LTTE. I highlighted that the applicant claimed to have no interest in participating in the war and allegedly made efforts to escape. In response, the applicant expressed the view that the LTTE fought for the country and the Tamil community. He felt there was nothing wrong with celebrating their effort. Despite the alleged treatment the applicant received from the LTTE, he said they deserve sympathy and respect.
As a Tamil man from the East of Sri Lanka, who was in his [age] in the final years of the civil war, I accept that its plausible he underwent combat training with the LTTE. On the available evidence, I do not accept that he was recruited at gunpoint or forcibly detained in a camp for six months. Regardless of his motivation, I consider that the applicant’s involvement with the LTTE would bring him to the adverse attention of Sri Lankan authorities.
The security situation in Sri Lanka is reported to have greatly improved since the end of the civil war in May 2009. This necessarily impacts on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision, even if it may have been well-founded at earlier parts of the process. In assessing the applicant’s claims to fear harm in Sri Lanka, I need to consider the risk of harm to the applicant in the reasonably foreseeable future. This assessment is a forward-looking test.
While the security situation has greatly improved for Tamils as a whole, the applicant’s experiences in Sri Lanka during the war, his departure from Sri Lanka relatively close to the end of the war and his lengthy period outside the country indicate an increased risk of harm to the applicant if he is returned to Sri Lanka.
The LTTE no longer exists as an organised force, and only a few incidents involving former LTTE members have been recorded since the end of the war.[2] Nevertheless, former LTTE members may be monitored. Sources suggest that the extent of monitoring typically depends on an individual’s seniority within the LTTE, and ongoing involvements with politically sensitive issues. There have been more recent reports of intensive surveillance and intimidation of ex-LTTE members.[3]
[2] E.g. 'Ex-LTTE cadre, wife and sister arrested with fire arms, explosives', Colombo Page, 13 October 2019; 'An Accidental Bomb Blast Identified an Active LTTE Intelligent Agent', Asian Tribune, 07 July 2020; 'Tamil family arrested by Sri Lankan police', Tamil Guardian, 08 December 2020; 'Sri Lankan intelligence arrest two Tamils for allegedly manufacturing firearms', Tamil Guardian, 22 October 2020; 'Former LTTE cadre arrested in Batticaloa for 'reviving' the organisation', Tamil Guardian, 02 June 2021.
[3] 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022.
‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.[4]
[4] DFAT, Country Information Report for Sri Lanka 23 December 2021
‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted’.[5]
[5] Ibid
DFAT reports that Sri Lankan returnees are interviewed by Sri Lankan Immigration. Depending on their background, they may also be interviewed by the State Intelligence Service and the CID. Those with a former LTTE connection are likely to be questioned, although sources indicate this would depend on the case. These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. Credible sources state that, as part of this process, police will seek to confirm the identity of returnees travelling on temporary travel documents. I accept that the applicant is not in possession of a valid passport and he would require a temporary travel document to return to Sri Lanka. I accept that routine enquiries may well identify him as a former LTTE member, or a person suspected of being a former combatant.
Although the applicant did not hold a senior role within the LTTE, he was trained for front-line combat. Furthermore, the applicant is a young Tamil man from the East, he departed the country relatively close to the end of the civil war and has not been sent for rehabilitation to date. I accept that he has attended Heroes’ Day events in Australia and made related posts on social media. It may be that considered individually, none of these matters clearly indicate the applicant will be of adverse interest to the Sri Lankan authorities if he is returned to Sri Lanka given the significant changes to the political and security situation that have occurred since he left that country. However, considered cumulatively, I cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE. In the circumstances, I cannot discount the possibility that the applicant would be detained or that the treatment in detention would amount to serious harm.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, I find that state protection will not be available to the applicant and the real chance of persecution relates to all areas of Sri Lanka. In the circumstances, it is not necessary to make a finding of fact in respect to the applicant’s claim to fear harm from the Karuna Group.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
…

[2023] AATA 1453

24 March 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies