1721861 (Refugee)

1721861 (Refugee) [2022] AATA 1340 (18 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1721861

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Lilly Mojsin
DATE:18 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2022 at 11.00 am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – suspected support for Liberation Tigers of Tamil Eelam – particular social group – failed asylum seeker – illegal departure – fisherman prevented from earning a living – repeated detention – physical assault – fear of killing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 95, 425, 426, 441, 499
Migration Regulations 1994, Schedule 2, cl 866.222
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 4 September 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia as an Irregular Maritime Arrival on a vessel named [name] [in] May 2012. The applicant applied for a Protection (Class XA), Subclass 866 visa on 1 September 2012. On 17 January 2013 the visa was refused and on 17 February 2013 the applicant appealed that decision to the former Refugee Review Tribunal [RRT].
On 29 April 2013 the RRT[1], differently constituted, remitted the matter to the Department for reconsideration with the direction that the applicant satisfies s36(2) of the Migration Act.
[1] RRT 1302435
On 5 February 2014, the applicant was refused the grant of a Protection (Class XA), Subclass 866 visa because the delegate found he did not satisfy cl. 866.222 of Migration Regulations 1994. The applicant did not apply for a review of that decision.
On 18 June 2014 the then Minister for Immigration and Border Protection intervened under s.95A to grant the applicant a Subclass 449 Humanitarian Stay (Temporary) visa.
The then Minister for Immigration and Border Protection subsequently lifted the s.46A bar, allowing the applicant to apply for a protection visa [PV] in Australia.
The applicant applied for the PV on 15 March 2016. The delegate refused to grant the visa on the basis that there was not a real chance or a real risk that the applicant would suffer serious or significant harm on his return to Sri Lanka within a reasonably foreseeable future.
The applicant sought review of the delegate's decision to this Tribunal, attaching a copy of Department decision to the review application.
The applicant was invited, pursuant to s 425 of the Act, to appear before the Tribunal on 3 March 2022 at 9.30 am. The invitation stated that the hearing would be held by video conference. The hearing invitation also stated that if the applicant was not able to attend the hearing, the applicant should advise the Tribunal as soon as possible. The hearing invitation also advised the applicant that if the applicant does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or may dismiss the application for review, without any further consideration of the application or the information before the Tribunal.
The applicant did not respond to the Tribunal’s invitation for the hearing.
Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Alternatively, the Tribunal may dismiss the application without any further consideration of the application or information before the Tribunal.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
I find the hearing invitation that was sent to the applicant's email address for service was given by the applicant to the Tribunal. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s.441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
CRITERIA FOR A PROTECTION VISA
See annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born on [date] in [Village 1 in] Puttalam District. He a Hindu ethnic Tamil who is married and has [children]. He married [in] April 2000. He has parents, [and specified family members] living in [Village 1]. He completed [grade] school and has worked as a fisherman in Sri Lanka and [an occupation 1] in [Country 1] from [between specified years].
At an Irregular Maritime Arrival interview held on 27 June 2012 the applicant said that
My difficult situation. What I earn for a day is not enough for a living. And I've got [number] kids. I have to educate them. For a computer class to send them you need 500 rupees per lesson. For me to send the kids to school I need to provide food and my income is not enough. Because of the difficulty I did a second job. Even with that I was struggling to put food on the table. Sometimes when I went to work the police round you up and keep you for 2 - 3 hours. They send you back home. Going to work was a problem. Whatever you earn for a day is just barely enough to put food on the table. My wife told me you have [kids] to support, we need money to educate them, we can't educate the kids. My wife said go anywhere. If you don't go it will be very difficult to live. There's no money to support the family and live together. So where I live is along the beach. If there's a tsunami my place will be wiped out. There's no financial support from my wife's parents because both parents have passed away. I wanted a better future for my children. I don't want their lives to be affected. That's why I came here. My wife said if there's a boat going, you go. I came here because of the hardship, not enough money for food. Whenever I make a phone call the kids would cry. That's all I have to say. I don't have anything else to say.
Once I was kept in gaol. This was when I was [age] years old. I was walking on the road, on suspicion they took me and put me in gaol. There wasn't anything after that. I was going along the road. There was a theft in the [fishery] that night so because of that they took me away. The Singalese took me and handed me over to the police. Sometimes when I went to work the police round you up and keep you for 2 - 3 hours.
I was threatened. For me to tell you must guarantee my life. They tortured us and brought us here. The drivers. They are Singalese. I wrote the names on a piece of paper. [Officer A], [Officer B] is [name] and [Officer C] is [name]. [Officer C] will beat you up whenever you go for a meal. They give you little food to eat and haIf a cup of water. If you identify us we will go back and my family will be beaten up. These people had a meeting with us when we first arrived (Christmas Island) and they said not to identify them. We have people back home and your families will be kidnapped. They speak in Singalese and we can understand. Just before we arrived here they were on liquor and pointed knives and threatened people. They never gave us a welcome at meal times. There was abuse and they were using filthy language. I don't know why they were doing this. For 2 days we were kept in the bunker. They brought us up, provided a meal and we were sent back. My wife organised this. There was talk in the village so she told me to go on this boat.
In a statement dated 16 September 2012 the applicant stated
Why I left that country, including details of prior harm 2007
After I my [children] were [born], I travelled to [District 1] for work. I was a fisherman. I was there for 3 months. The local people told us that we should leave, as the town was going to be attacked by the Sri Lanka Army [SLA] and navy. At that time, there was lots of conflict between the SLA and the Liberation Tigers of Tamil Eelam [LTTE]. As I feared for my safety, the other [Village 1] fishermen who were working in the area at that time and myself decided to leave and return to [Village 1]. Along the way, in [District 2], we stopped at a check point by the SLA. They asked my national ID however, they did not believe it was mine. I was arrested and detained for 4 days. During the time that I was detained, each day 4 SLA officers would come into the room that I was being held in and beat me. They kicked me and hit me with wooden sticks. I begged them to stop but they would not listen. They demanded to know if I was a LTTE member or supporter as I was Tamil. The SLA believes that all Tamils are LTTE members or supporters. They warned me to enter the area again and I was not permitted to fish there again. I was very frightened of the SLA officers as they said that if I come back I will be killed. I was then released and sought to return home to [Village 1].
Aug-Sep 2007 As I had to feed my family, I fished off the coast of [Village 1] every day to make sure my wife and [children] could eat. One day in late August or early September 2007 I was stopped by 2 Singhalese police officers. As I was Tamil, they arrested me and said that I was suspected of an incident that had happened at a [fishery]. They told me what had happened but as they informed me in Singhalese I did not understand. I was deprived of the right to know what crime I was suspected of committing. They took me to the courthouse in [Town 1] in their jeep. A case was filed at court against me as the suspect of that incident. This happened only because I am Tamil and the Sinhalese and government authorities target us. They released me on bail later this day and told me I had to return to the court 1 month later. I went to court as required and the charges were dropped. My assigned lawyer was also Singhalese and was unable to tell me what the exact charges were.
2007-2012 As I have a family, I needed to provide for them and protect them. I went to work as a fisherman again. Most days when I travelled to work, SLA would stop only the Tamil fishermen. They would let the Singhalese fishermen continue to work. Each time they would question us as to what our business was being in that area. Every time this happened, I was frightened that they would beat me again as they had previously. I feared that they would detain me again for an extended period of time. They would push us around some men were beaten. Each time this happened I would only be released in the afternoon and I would not be able to fish. This made life very difficult as I struggled to provide for my family. My wife and children feared that I would not come home. I also was not able to travel back to [District 1] to fish and earn a living as I had been warned by the SLA not to return. I could not take that risk as I feared I would be killed.
As I am a Tamil, I am targeted and my life is made very difficult. I fear that I will be detained and beaten as I had before. I fear that one day I will not return home to see my wife and [children]. I want to be able to provide the best life for them and being a Tamil, being detained by the SLA almost every other day means that I cannot tell them that I will return home at the end of each day or that I will stay alive. As I wanted to escape the continuous persecution from the SLA officers and police, I began making arrangements to leave Sri Lanka by boat. After I left by boat from Sri Lanka, word spread around [Village 1] that I had illegally left the country. The ClD somehow were made aware of this. The CID began enquiring in my village as to where I was. They asked specifically for me with a number of people. My wife was told about this and became very scared that they would come to our house. Since this time, my wife and children have stayed with friends as they are too scared to return in fear of the ClD.
If forced to return to Sri Lanka, I fear that I will be arrested, interrogated, subjected to serious harm, torture, imprisoned or killed.
I fear the SLA, I fear I will be detained again, subjected to cruel or inhuman or degrading treatment or punishment, possible torture and arbitrarily deprived of my life. I fear the ClD - I fear that they will detain me, subject me to cruel or inhuman or degrading treatment or punishment, possible torture and arbitrarily deprived of my life.
I fear I will be harmedImistreated if I return to Sri Lanka as I am a Tamil. I fear I will be suffer significant harm if I return to Sri Lanka as the ClD who have been looking for me will: Arbitrarily deprive me of my right to life; Subject me to torture; Subject me to cruel or inhuman treatment or punishment; or Subject me to degrading treatment or punishment I fear that I will be harmedImistreated if I return to Sri Lanka as a failed asylum seeker.
I fear the authorities - they will not protect me. The SLA, Singhalese police officers and the CID believe that they are above the law of the land.
The applicant attended a PV interview, with the Department, on 24 September 2012. He confirmed he was born in [Village 1], Puttalam District, North Western Province. In 2007 he travelled by himself to [District 1] for work as a fisherman for 3 months. In [District 2] he was stopped at a check point by the SLA. He was arrested and detained for 4 days. Each day 4 SLA officers would come into the room that he was being held in and beat him, kick him and hit him with wooden sticks. He begged them to stop but they would not listen. They demanded to know if he was a LTTE member or supporter as he was Tamil. They warned him to not enter the area again and he was not permitted to fish there again. He was released. he fished off the coast of [Village 1] every day. In late August or early September 2007 he was stopped by 2 Singhalese police officers, as he was Tamil, they arrested him and said that he was suspected of an incident that had happened at a local [fishery]. They took him to the courthouse in [Town 1] in their jeep. A case was filed at court against him as the suspect of that incident. They released him on bail later this day and told him he had to return to the court 1 month later. When he went to court as required the charges were dropped. His assigned lawyer was also Singhalese and was unable to tell him what the exact charges were. Between 2007-2012 he went to work as a fisherman again. Most days when he travelled to work, SLA would stop only the Tamil fishermen. They would question him as to what his business was in that area. He would only be released in the afternoon and would not be able to fish. He was not able to travel back to [District 1] to fish and earn a living as he had been warned by the SLA not to return. He could not take that risk as he feared he would be killed. He was not arrested and detained every day only when there was information from the SLA head office and they had suspicion about something, they would round up people. The nature of his job was seasonal and he only worked 6 months in [Town 1] and the remaining 6 months would travel to Jaffna and work in the fishing industry
The applicant confirmed to the Department he was not and had not been a member of the LTTE. The applicant claims after he left by boat from Sri Lanka, word spread around [Village 1] that he had illegally left the country. The CID somehow were made aware of this. The CID began enquiring in his village as to where he was. They asked specifically for him with a number of people. His wife was told about this and became very scared that they would come to their house. Since this time, his wife and children have stayed with friends as they are too scared to return in fear of the CID.
A submission from the applicant’s migration agent on 12 April 2013 argued that the applicant faced harm in Sri Lanka due to his Tamil ethnicity, his imputed anti-government and pro-LTTE political opinion by virtue of his ethnicity, his previous periods of detention, his illegal departure from Sri Lanka and his application for asylum in Australia.
The applicant attended a hearing with the previous Tribunal[2], differently constituted, on 19 April 2013. He stated that he was harassed by the SLA and the CID in Sri Lanka. He was asked why they harassed him. He stated that it was a combination of factors but essentially it was because he was a Tamil. The time he spent on the east coast, his detention in 2007, and the time he spent in Jaffna, when he was unable to fish in [Village 1], contributed to the difficulties he had with the authorities. They accused him of supporting the LTTE. He said that he had no real involvement with the group and he did not think that the authorities genuinely believed that he was involved with it, however, the authorities commonly used threats relating to the LTTE as a means of harassing Tamils.
[2] RRT 1302435
While he was travelling to work, with the other fishermen who worked for the same employer, they would be stopped by the armed forces, their identification were checked, and some were detained. He estimated that he was detained up to fifteen times in the 180 days before he departed from Sri Lanka. He was commonly held for a few hours but sometimes it was the whole day. He was accused of supporting the LTTE and prevented from going to work. He was only earning between 3000 and 4000 rupees a month, depending on how much fish was caught, and being prevented from working even 15 days in a six month period, significantly impacted on his ability to support his family. The detentions were more frequent during the civil war but even after it ended he was prevented from working approximately one month of each year. The standard procedure was that he would be taken to a camp, his wife would then have to come with documentation relating to his background, and eventually he would be released.
He had not been to Jaffna since the incident in 2007. He was told by the army that he was not allowed to leave the [Town 1] area after he was detained and beaten in 2007. He fished with his employer during the season and the remainder of the year he survived by shore fishing. He had not been to the north or east of Sri Lanka since 2007. The local authorities in Sri Lanka, the armed forces and the police, were continuing to harass and target members of the Tamil community. The government did nothing to protect the community. His decision to flee the country had already attracted the adverse interest of the authorities in Sri Lanka and he anticipated that he faced further, and possibly more severe, harassment from the authorities if he returned to Sri Lanka. The applicant stated that he will again be accused of supporting the LTTE and the authorities will harm him with impunity.
His [relative] mortgaged her house to raise the money to pay for his journey. he provided photographs of the house. He indicated that he and his family lived in that house but they had moved out and were currently living in a thatched hut. He provided photographs of his family in front of their new home.
The applicant did not provide any information to the Tribunal to support his claims.
COUNTRY INFORMATION
According to UK Home Office Report on Sri Lanka[3], published 20 January 2020, after a fact-finding mission to Sri Lanka conducted between 28 September and 5 October 2019
[3]
When the war finished those connected to the LTTE were arrested, sent to court and ordered to go through a rehabilitation process. Some younger former cadres were given the opportunity to complete their education at school and university, some have been employed by the security forces or civil defence force with some given government employment as bus drivers and conductors. One source noted that some former cadres have gone into politics.
Several sources stated that ex-cadres fear they are being monitoring by the military and intelligence. One source noted that some individuals are more likely to be monitored such as those with criminal connections.
Representatives from the Human Rights Commission noted that prominent LTTE sympathisers who actively support the LTTE or raised funds for them in the past may be monitored or questioned although interest in them may depend on their past involvement and any current involvement with diaspora groups.
A human rights activist told the FFT that there is still interest from the security forces to look for former members of the LTTE. He stated that some activists have been summoned to the Terrorism Investigation Department (TID) and this includes former cadres who do not have an activist profile.
The representative from the northern province community told the FFT that after 2015 there continued to be some surveillance and house visits by the intelligence service on former LTTE cadres, although the style of enquiry.
Between 2010-11 and 2018-19, 3716 Sri Lankan nationals returned from Australia to Sri Lanka or a third country. Many others returned from the US, Canada, the UK and other European countries. Returnees to Sri Lanka arrive at Colombo’s Bandaranaike International Airport – currently the only location for returns.
Different agencies, including the Department of Immigration and Emigration, the State Intelligence Service, the Criminal Investigation Department, and – at times – the Terrorism Investigation Division process returnees at the airport. 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. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. Where there are outstanding criminal warrants, criminal procedures will apply.
A May 2021 UK Upper Tribunal decision found that additional questioning over and above the confirmation of identity for those travelling on a temporary travel document is only reasonably likely to occur where an individual’s name appears on the stop or watch electronic databases (see below for more information). Prior to the return of an individual travelling on a temporary travel document, Sri Lankan authorities are likely to have obtained information on matters including whether the individual is associated with a particular diaspora organisation; whether they have attended meetings and/or demonstrations and the nature of their involvement in these events; any social media presence they might have; and whether they have been involved in any political lobbying. In keeping with this, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including through the use of ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport. Those who appear on this list will reportedly be detained at the airport. ‘Watch’ lists include names of those individuals that the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
According to the UK Upper Tribunal, returnees who appear on this list will fall into one of two categories: those who, because of their existing profile, are deemed to be of sufficiently strong interest to warrant detention once they return to their home area or place of resettlement; and those who are of interest, but not at a level sufficient to justify detention at that point in time. This latter group will be monitored.
Individuals with LTTE links will likely face further questioning, although sources indicate this would depend on the case. For example, the UNHCR told a January 2020 UK Home Office fact finding mission that high-profile ex-LTTE members would be subjected to additional questioning but may not be detained, although the Attorney General’s Department and the CID says former LTTE cadres would only be of interest if there was a pending criminal case against them and that mere membership of the LTTE would not make someone of interest – a point also confirmed by an NGO.
Processing of returnees at the airport can take several hours due to the administrative processes, interview lengths and staffing constraints. All returnees are subject to these standard procedures, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. The International Organization for Migration (IOM) meets assisted voluntary returnees after immigration clearance at the airport and provides some cash and onward transportation assistance.
If the returnee is suspected of departing illegally, they can be charged under Sri Lanka’s Immigrants and Emigrants Act (I&E Act). Arrests are made by the Police Airport Criminal Investigations Unit. Arrested individuals can remain in custody at the Criminal Investigation Department’s Airport Office for up to 24 hours after arrival (up to two days in the event that a magistrate is not available to hear their case, such as on a weekend or public holiday) before they are presented at the Negombo Magistrate’s Court, after which they are placed in the custody of the courts or prison services. The magistrate makes a determination on the next steps for each individual; facilitators or organisers of people smuggling ventures, including the captain and crew of the boat, are usually held in custody, but bail is normally granted to fare-paying passengers.
Facilitators or organisers of people smuggling ventures convicted under the I&E Act normally receive prison sentences of between one and three years depending on the extent of their involvement, with sentences usually closer to three years. Fare-paying passengers receive a fine varying from LKR 3,000 (approximately AUD25) to LKR200,000 (approximately AUD1,633), although fines of between LKR15,000 and LKR20,000 (approximately AUD122 and AUD163) are typical.
Most returnees continue to be Tamil. While the UK Upper Tribunal found that returnees whose details do not appear on the stop or watch databases will in general be able to return home without any further action by Sri Lankan authorities, upon the completion of immigration procedures it is (as stated above) not unusual for returnees – especially those with a former LTTE connection – to experience further checks at home, although the period of monitoring can vary. Many Tamil returnees choose to return to the north due to family links or because it is their place of origin, or because of the relatively lower cost of living. Failed asylum seekers receive limited reintegration assistance, and credible sources state that returnees may face financial difficulties reintegrating into their communities, due to the sale of their belongings to fund their passage overseas. However, societal discrimination is not considered to be a major concern.

DFAT 23 December 2021 country report Sri Lanka notes:
3.40 Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.
3.41 While the LTTE was comprehensively defeated, 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, 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. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex‑combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.
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. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
Exit and Entry Procedures
Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
The Immigrants and Emigrants Act (1948) (the I&E Act) governs exit from and entry to Sri Lanka. Returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the I&E Act. Sections 34 and 35 (a) of the I&E Act make it an offence, respectively, to depart Sri Lanka other than via an approved port of departure, such as a seaport or airport, and/or without a valid passport. Returnees who departed Sri Lanka legally are not required to face a court, as no offence under the I&E Act applies. Sri Lanka has a mature people smuggling industry. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine, though DFAT is unaware of a prison sentence being given for illegal departure by itself. Facilitators or organisers of people smuggling ventures, including captains and their crew, are charged with more serious offences and typically refused bail.
Those charged are required to appear in court in the location where the matter was first heard, reportedly Negombo Courts, near the airport, which involves legal and transport costs. While the frequency of court appearances depends on the magistrate, DFAT understands that most individuals charged under the I&E Act appear in court every 3-6 months, regardless of their plea, for bail hearings. In addition to their own court hearings, those charged may be summonsed as witnesses in cases against the facilitators or organisers of people smuggling ventures. The cases of those charged with illegal departure may take years to resolve, requiring on-going court appearances (and illegal departees have no reasonable prospect of a defence). It is unclear to DFAT why such cases take so long. One source suggested that cases are taken forward in court only when all members of a people smuggling venture have been located; while another local source suggested it was simply due to the workings of the Sri Lankan justice system. For many returnees, this means they are subject to the slow processes of the Sri Lankan legal system; some returnees told DFAT that it was difficult and stressful having to return periodically to Colombo for a further hearing in a case where they were uncertain of the outcome.
While those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.
The severity of the fine for those charged under the I&E Act does not necessarily increase for those who have departed Sri Lanka illegally on more than one occasion. DFAT notes that, while the fines issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over protracted lengths of time can be high. Anecdotal evidence suggests there is an acceptance within the Tamil community that illegal maritime ventures to Australia in search of asylum would be futile at this point in time.
The minimum age of criminal responsibility in Sri Lanka is 12 years. Under Sri Lankan law, anybody over the age of 12 at the time of their alleged offence is treated as an adult. Children over the age of 12 can therefore be charged with breaking the I&E Act, so long as they were 12 or older at the time of the alleged offence. No charges are imposed against children under 12 years of age or those persons who were younger than 12 at the time of the alleged offence.
DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA. Some returnees from Australia have been charged with immigration offences and with criminal offences allegedly committed before departure.
REASONS AND FINDINGS
The applicant arrived in Australia by boat, illegally in April 2012. He produced the following documentary evidence of his identity, nationality and citizenship.
- Sri Lankan National Identity Card
- Birth Certificate
- Marriage Certificate
The Department has accepted this these documents as evidence of the applicant’s identity, I therefore accept that the applicant is a national of Sri Lanka and is not a national or citizen of any other country or has a right to enter and reside in any country other than Sri Lanka. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Sri Lanka is the applicant's “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility.
The applicant has made no claims in regard to fearing harm or having been harmed for his Hindu faith and none is suggested by the evidence before me.
The Sri Lankan Civil War started in 1983 and formally ended in May 2009 with the Sri Lankan Army [SLA)] defeating the separatist Liberation Tigers of Tamil Eelam [LTTE].
The previous Tribunal, differently constituted, on 29 April 2013 found that whilst the applicant does not have the profile of person who is most at risk of targeting by the authorities in Sri Lanka because he is not a political activist, a human rights worker, or a person actively supporting the LTTE, he was targeted for being a Tamil and he was subjected to persistent harassment which prevented him from adequately supporting himself and his family. The Tribunal accepted that the applicant was prevented from earning a living because of his ethnicity and possibly the belief that he supported the LTTE. The Tribunal accepted that the restrictions resulted in significant economic hardship for himself and his family, which threatened his and his dependent’s capacity to subsist and that such harassment, as well as regular periods of confinement, falsely been accused of involvement with the LTTE, and being subjected to beatings, constituted sufficiently serious harm to amount to persecution for Convention purposes.
The applicant did not attend the Tribunal hearing and I have been unable to explore his claims with him. I accept that the applicant is a Hindu ethnic Tamil from [Village 1] who worked as a fisherman until his departure to Australia. I accept that the applicant was not a supporter or member of the LTTE. I accept, as plausible, that during the Civil War he was rounded up by the police and kept for 2-3 hours and that he was falsely accused of theft [from fishing], and he was released and the charges were dropped. I accept that in 2007 he was stopped by SLA and was questioned and that he with other fishermen were rounded up by the SLA, questioned and released. I am not satisfied that such harassment by the SLA during the war period amounted to serious harm. The applicant was released on each occasion after 2-3 hours and on one occasion was kept for longer but released when charges were dropped.
As the applicant did not attend the Tribunal hearing I am unable to explore with him his claim of being arrested, beaten and harmed in [District 2] for 4 days and I have been unable to question him regarding his claimed detention for 4 days. Without further information from the applicant I do not accept that he was arrested or detained by the SLA or the navy or the police for 4 days beaten and harmed.
In regard to his claims that after the war ended the SLA continued to harass him because he was Tamil and preventing him from working, a DFAT report Sri Lanka dated 18 December 2015 reported that a 2010 report by the International Commission of Jurists stated that any association with the LTTE during the war was grounds for arrest. The majority of those arrested were sent to Government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. DFAT also reported that in addition to those arrested, many civilians were also questioned or monitored towards the end of the conflict. I accept that post 2009 the SLA continued to monitor Tamil populations in the Northern and Eastern Provinces which were heavily militarised, and there was highly oppressive monitoring and a registration regime in place just after the war. The applicant is from the North-Western Province. The applicant has not claimed to have been arrested post 2009 so I am unable to explore these claims with him.
The independent evidence before me does not suggest that Tamil fishermen from the north western province, without any connection to or involvement with the LTTE, were harassed, harmed or prevented from fishing post 2009 for their ethnicity. I consider that any interest in the applicant until he departed Sri Lanka occurred in the context of the routine monitoring of the Tamil population which continued after the war, and I am satisfied that it does not indicate that the authorities had any particular ongoing suspicion or concerns about the applicant’s involvement with the LTTE. I consider that had they done so, he would have been subject to more intensive and focussed investigation than he claims of continually being rounded up and released. Without further information from the applicant, I am not satisfied that the applicant was perceived to be an LTTE supporter. I therefore do not accept that he was detained up to fifteen times in the 180 days before he departed from Sri Lanka or that he was commonly held for a few hours but sometimes it was the whole day or that he was accused of supporting the LTTE and prevented from going to work or that he was prevented from working approximately one month of each year.
As for his claims that after he left word spread around [Village 1] that he had illegally left and the CID were made aware of this, began enquiring in his village as to where he was, asked specifically for him with a number of people and his wife became very scared leaving their home with the children to stay with friends, without further information from the applicant, I do not accept this claim. The applicant was not a member of the LTTE and I do not accept that he was perceived to be an LTTE supporter or that he suffered any harm for being perceived to be an LTTE supporter or anti-government.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm in Sri Lanka or flee harm in Sri Lanka for a refugee reason ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I am required to consider if the applicant will suffer serious or significant harm on his return to Sri Lanka, within a reasonably foreseeable future.
The applicant is an ethnic Tamil of the Hindu faith. As he makes no claim for harm for his religion, I find that there is not a real chance or a real risk that the applicant will suffer serious or significant harm for his religion within a reasonably foreseeable future.
The applicant claim he will suffer harm in Sri Lanka due to his Tamil ethnicity, his imputed anti-government and pro-LTTE political opinion by virtue of his ethnicity, his previous periods of detention, his illegal departure from Sri Lanka and his application for asylum in Australia.
The independent evidence[4] before me indicates that during 30 years of conflict, the fishery industry of the Northern Province was severely affected. Fishermen were not allowed to fish in certain areas, while they were restricted in other areas, so the catch from the Northern part declined during the conflict period. As a result of the civil war the small-scale fishermen faced many constraints including cycles of debt attributed to the intrinsic seasonality of fishing practices, the lack of capital required to access suitable technology and to diversify fishing methods, unwillingness of the younger generation to engage in direct fishing activities. At the end of the war efforts to increase fisheries production in the north were a high priority for the Department of Fisheries. In Sri Lanka, several initiatives have been taken to improve the marketing network for fisheries, to establish state owned retail outlets all over the island, modernize the current outlets, and enhance fish sales through the cooperative system.
[4]
I accept that there are high levels of poverty and under development in northern Sri Lanka. I have no independent before me to suggest that these issues are limited to the Tamil population of the Northern or North Western Provinces. Poverty and underdevelopment also affect the Sinhalese communities. There are fishermen's cooperatives present in many of the fishing villages of Sri Lanka, including in [Village 1]. The National Fishermen Solidarity movement has previously organised protests against issues that have negatively impacted on fishermen across Sri Lanka, regardless of ethnicity.
DFAT[5] reports that 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. The applicant did not claim to have actual LTTE links.
[5] DFAT Country Information Report 2021 Sri Lanka
As stated above I do not accept that the applicant had attracted the adverse interest of the authorities in Sri Lanka prior to his departure therefore I reject his claim that he faces further, and more severe harassment from the authorities if he returned to Sri Lanka. As I do not accept that the applicant was perceived to be or accused of supporting the LTTE, I find remote the chance, within a reasonably foreseeable future, that the authorities will monitor, harass or harm him for his perceived support of the LTTE.
Having regard to the independent information before me and to the individual circumstances of the applicant, I am not satisfied that there is a real chance that the applicant faces serious harm for a refugee reason on return to Sri Lanka because he is suspected of actual or imputed LTTE connections for any reason, including his Tamil ethnicity, his imputed anti-government and pro-LTTE political opinion, his previous periods of detention, his illegal departure from Sri Lanka or for any other reason arising from his background. I am not satisfied, given his particular profile, that there is a real chance that he would be harmed on return to Sri Lanka now or in the reasonably foreseeable future because of his actual or imputed support for the LTTE for any reason now or in the reasonably foreseeable future.

I accept that the applicant left Sri Lanka illegally in 2012. I accept that the applicant arrived in Australia without a visa by boat. As the applicant did not attend a Tribunal hearing I have been unable to explore with him his concerns about returning to Sri Lanka as a failed asylum seeker or an involuntary returnee.
The independent evidence, cited above, does not suggest that LTTE members or those perceived to be members were persecuted at the conclusion of the war. The applicant does not claim to have been an activist during the war or a former LTTE cadre or a fund raiser or a member of the LTTE in the diaspora. I have no independent evidence before me to suggest that returning Tamils from abroad, who are from the North Western Province or anywhere else in Sri Lanka, are perceived to have an adverse profile as members or perceived LTTE members. I find remote the chance or the risk that the applicant will suffer serious or significant harm on his return, within a reasonably foreseeable future, as an ethnic Tamil fisherman from the north or as a failed asylum seeker from the north or the North Western Province.
I have considered that the applicant will not return to Sri Lanka voluntarily and that he may be identified as a person who unsuccessfully sought asylum in Australia upon his return to Sri Lanka and would be considered to have committed an offence under the Immigrants and Emigrants Act (1948) (the I&E Act). I accept that facilitators, organisers and skippers (captains of boats) may be convicted under s.45c of that Act and have in the past received prison sentences of one year. The applicant does not claim to have been a facilitator or skipper. I do not accept that the applicant will be considered a people smuggler or will be linked to the LTTE.
The UK Home Office found that the processing of returnees at the airport can take several hours due to the administrative processes, interview lengths and staffing constraints. All returnees are subject to these standard procedures, regardless of ethnicity and religion, and sources state that there is no systematic policy of discrimination towards specific ethnic or religious groups. Detailed reporting included photographs of the airport receiving facilities. If the person is found to have links to the LTTE or if wanted for previous crimes committed in Sri Lanka may face further questioning by the CID based at the airport. This process can take a long time as checks need to be made with the local police and there is no central police database.
Sri Lanka returnees are questioned at the airport and where illegal departure is suspected under the I & E Act police at the airport make an arrest, take photographs and fingerprints, and at the earliest opportunity take the detainee to the closest Magistrate's Court and then responsibility for the detainee is taken over by the courts. Passengers are usually charged and released on bail if they plead not guilty and fined if they plead guilty.
DFAT[6] states that for returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. DFAT understands detainees are not subject to mistreatment during processing at the airport.
[6] DFAT Country Information Report Sri Lanka November 2019
A guilty plea will attract a fine to be paid in one sum or by instalments and the defendant is free to go. The fine for a first offence is equivalent to AUD25. If the returnee pleads not guilty, he or she is released on their own guarantee or guarantee by a family member. Sometimes a charged person is required to report until finalisation. The Sri Lankan Attorney General's Department has advised that no mere passenger has ever been given a custodial sentence, however fines are issued to deter people from leaving illegally.
Generally, the amount of time in detention is very short, that is, up to 24 hours and occasionally up to 2 days. There is no country information before me indicating that detention at the airport or Magistrate's Court would be harmful.
As the applicant did not attend the Tribunal hearing I have no information before me about whether or not he has been working in Australia. As the applicant’s evidence was that his relatives assisted him to pay for his journey to Australia, I do not accept that the applicant’s family would be unable to assist him pay bail or any fine. I find remote the chance or the risk that the applicant would not be able to pay the fines or bail.
I accept that the applicant may be charged with an offence under the I & E Act as the evidence is that he left Sri Lanka in breach of the provisions of the Act. Having regard to the assessment of the Australian Department of Foreign Affairs and Trade detailed above, I do not accept that there is a real chance that the applicant will be treated differently from anyone else returning to Sri Lanka because he is a Tamil failed asylum seeker or that there is a real chance that he will be persecuted because of any political opinion imputed to him because he is a failed asylum-seeker, or because he left Sri Lanka illegally.
I accept that were the applicant to be charged under the I & E Act with offences relating to his illegal departure, I consider that this will simply be the application of a law which applies generally to everyone in Sri Lanka and I do not accept on the evidence before me that there is a real chance that the law will be applied to him in a manner which discriminates for reasons of his race, religion, nationality, membership of a particular social group or political opinion. There were no instances of prosecution for departing illegally from Sri Lanka being applied in a discriminatory manner and all returnees to Sri Lanka are subject to standard procedures, regardless of ethnicity and religion.
The applicant does not claim to have any outstanding criminal matters with the police. I am not satisfied that the applicant was arrested, taken for questioning, or monitored by Sri Lankan authorities prior to his departure from Sri Lanka. I am satisfied, as stated above, that the applicant did not suffer serious harm in Sri Lanka for a refugee reason. The applicant has not claimed any involvement in terrorist groups. I do not accept that the applicant would face a real chance of serious harm or a real risk of significant harm on the basis that he would be suspected of being a terrorist.
In light of the above findings, I am not satisfied that the applicant has a well-founded fear of serious harm for a refugee reason due to his illegal departure from Sri Lanka or for being a failed asylum seeker. I am satisfied that the chance of the applicant being seriously harmed or the risk of the applicant being significantly harmed within a reasonably forseeable future, if detained on his return, is remote.
I am required to assess if the applicant, on his return to Sri Lanka, will suffer significant harm, as a Hindu Tamil who left Sri Lanka illegally. In considering whether there is a real risk, I have considered country information set out earlier in this decision.
There is no evidence before me that the applicant, if charged under the I & E Act on his return to Sri Lanka, as a Hindu Tamil, would be arbitrarily deprived of his life, that he would receive the death penalty, that he would be subjected to torture or that he would be subjected to cruel or inhuman or degrading treatment or punishment.
I do not accept that questioning at the airport or a short detention in the airport's holding cells or at the Magistrate's Court amounts to significant harm. There is no material before me to suggests the treatment of detainees at the airport through overcrowding or poor conditions is anything other than the result of insufficient resources.
The country information indicates that there is no evidence of mistreatment either at the airport or at the court for the very short period in which the applicant might be detained. The country information indicates that only those involved in people smuggling will generally be denied bail and subject to longer prison conditions. Furthermore, there is no evidence to suggest that the authorities would intend to cause suffering by virtue of conditions in detention. Therefore, while I accept that prison conditions in Sri Lanka are generally poor and overcrowded, I do not accept that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.
There is no evidence before me of mistreatment either at the airport or at the court for the very short period in which the applicant might be detained. The UK Home Office report conducted a fact-finding mission in late 2019 in which its officers specifically focused on this issue. The evidence indicates that the applicant was a fare paying passenger on a people smuggling venture and the country information indicates that, as such, he would not be taken into custody and would be granted bail. I do not accept that the applicant will be tortured or killed on return.
Other than his illegal departure there is no evidence before me that that the applicant has committed any criminal offence in Sri Lanka that would suggest the death penalty would be imposed on him.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.
There is no evidence that there is a widespread condition of violence in Sri Lanka and as I do not accept that the applicant was threatened or harmed by non-state actors or the SLA in Sri Lanka, post 2009 and before his departure, I do not accept that there is a risk, of suffering significant harm, from non-state actors or the SLA, within a reasonably foreseeable future.
While I accept that the applicant may be charged under the I & E Act, I do not accept that the applicant will be taken into custody where he might face conduct which could amount to torture, cruel or inhuman or degrading treatment or punishment.
DFAT assesses that reintegration issues are not due to the failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. As the applicant did not attend the hearing, I am unable to explore with him his employment in Australia and whether he would face employment and accommodation difficulties, therefore I find remote the risk that the applicant will face employment and accommodation difficulties, within a reasonably foreseeable future.
Having considered the applicant's circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
CONCLUSIONS
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
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 1340

18 March 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies