1721863 (Refugee)

[2023] AATA 4495

1721863 (Refugee) [2023] AATA 4495 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jeremy Bayliss

CASE NUMBER:  1721863

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:James Lambie

DATE:17 October 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 October 2023 at 10:23am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – review of 785 Temporary Protection Visa – Tamil males from the Vanni suspected of being part of the LTTE – failed Tamil asylum seekers – successful Tamil businessmen – operated money lending business – lent money to landlady – landlady’s refusal to repay loan – landlady’s connection with high ranking officer in Sri Lankan military – applicants subsequently accused of being LTTE – asked to report to CID – inconsistencies in evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A(2), 48B, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Sri Lanka, applied for the visas on 24 November 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 14 September 2017.

4. The primary review applicant [Applicant 1] and secondary applicant [Applicant 2], appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

5. The applicants were represented in relation to the review.  Jeremy Bayliss of Vrachnas and Co represented the applicants from 5 May 2023 and attended the Tribunal hearing by telephone.

6. The secondary applicant, [Applicant 2], sought to lodge a separate application from the primary review applicant’s claims on 24 January 2022 through her representative at the time.    On 27 July 2023 [Applicant 2]. through her current representative, Mr Bayliss, withdrew her review application with the Tribunal and advised that she continues to rely on the protection claims raised by her husband. Accordingly, the Tribunal has joined [Applicant 2]’s application back with [Applicant 1].

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicants meet the refugee criterion and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

14. The applicants (except [Applicant 4] who was born in Australia) departed Sri Lanka [in] July 2012 and arrived at Christmas Island [in] July 2012.

15. On 14 November 2012, the primary review applicant lodged a statement of claims for a Protection visa and was interviewed in relation to that request on 14 November 2012. On 11 January 2013 the primary review applicant was found to be a refugee. On 4 February 2014 the Protection (XA) Subclass 866 (Protection) visa was subsequently refused by the Department.

16. In February 2014 a routine report released on the Department’s website enabled access to personal information about people who were in immigration detention on 31 January 2014, the primary review applicant was affected by the data breach. The Minister exercised the power under subsection 46A(2) and section 48B of the Act allowing the applicants to make a valid application for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). On 7 June 2016 the primary review applicant lodged a valid application for a 785 Temporary Protection Visa and was interviewed by the Department on 8 August 2017 in relation to his claims for protection.  

17. That application was refused by a delegate of the Minister for Home Affairs on 11 September 2017. On 14 September 2017, the applicants applied for a merits review of the delegate’s decision to the Tribunal.

    Claims:

18. The primary review applicant’s claims are set out in his protection visa application, written claims and the delegate’s decision. His claims were summarised by the delegate as follows:

    Entry Interview

    The applicant claimed that he was born and grew up in Mullaitivu, Northern Province in Sri Lanka. During the civil war, the applicant and his family were displaced on two occasions; in 1997 and 2009. After 2002, the applicant and his family were able to return to their home after which time he obtained [employment]. Some years later, the applicant [did other work]. In 2009, the applicant and his family were again displaced by the war and were forced to move from place to place in Mullaitivu before ending up in [Location 1] in Vavuniya, which accommodated internally displaced persons (IDPs). They remained in [Location 1] for a period of six months until the conclusion of the war in November 2009, upon which they were released.

    After being released from [Location 1], the applicant relocated to Vavuniya with his family where he opened a [shop]. Prompted by threats received from the Sri Lankan Criminal Investigation Department (CID), the applicant and his family went into hiding in a nearby village at [Village 1]. During this time, the applicant made preparations to leave Sri Lanka.

    PV application

    ·The applicant was born on [date] in Mullaitivu, Northern Province, Sri Lanka. He is a Hindu of Tamil ethnicity and a Sri Lankan citizen by birth.

    ·The applicant and his family were displaced by the civil war on two occasions; in 1997 and 2009. In  the latter year, the applicant and his family were forced to seek refuge in a camp for IDPs.

    ·Upon release from the IDP camp, the applicant and his family relocated to Vavuniya in order to make a fresh start. There, the applicant opened a [shop]; the lessor of which was a Singhalese lady, whose brother was [an officer] in the Sri Lankan army.

    ·As the [shop] became profitable, the applicant was frequently approached by people seeking loans. On several occasions, he loaned money to Singhalese people.

    ·On several occasions, the applicant advanced large sums to the lessor. She never once repaid her debts.

    ·In May  2012, the lessor asked the applicant for  a loan of 300,000  rupees. When the applicant  refused, the lessor demanded that the applicant immediately vacate the premises.

    ·Two or three days after the above incident, the applicant was approached at his [shop] by two CID officers who, after questioning him, informed him that he was suspected of being a supporter of  the Liberation Tamil Tigers of Eelam (LTTE). They demanded that the applicant and his wife present to the CID office that evening.

    ·The applicant was afraid to do ·so as one of his neighbors (also a Tamil and also from the Vanni, close to where the applicant was from) was taken by the CID for questioning and was detained and tortured for  being a suspected LTTE member.

    ·The following day the applicant did not open his [shop]. The applicant was visiting a friend when two CID officers went to the applicant's home and questioned his wife. They told her that they had asked the applicant to present at the CID office the prior evening  but he had failed to show. The  officers  demanded that the wife and her husband present to the CID office by 6 o'clock that evening.

    ·That evening, the applicant and his family fled their home and stayed with the applicant's sister in [Village 1] village.

    ·The applicant phoned his neighbours in Vavuniya who informed him that members of the CID had come to his house looking for him and that they had also been seen at the [shop]. The applicant then decided to seek refuge in a third country.

    ·Since the applicant has been in Australia, he is advised by his father that the CID continue to look for him. His father has been threatened if he does no cooperate in locating the applicant.

    ·The applicant fears harm from the Sri Lankan authorities on account of his Tamil ethnicity; his political opinion which is imputed to be pro-LTTE; as well as his membership to the following social groups:

    oTamil males from the Vanni suspected of being part of the LTTE;

    oFailed Tamil asylum seekers;

    oSuccessful Tamil businessmen.

    Evidence presented prior to the hearing

19. The applicants produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:

    a.The applicants’ protection visa applications forms lodged on 7 June 2016.

    b.The applicants’ identity documents including the primary review applicant’s national identity card, birth certificate, temporary identity card issued by the Sri Lankan police and marriage certificate; Sri Lankan birth certificates; and a Queensland birth certificate of [Applicant 4].

    c.Statement of claims by the primary review applicant and [Applicant 2] dated 1 November 2012.

    d.Untranslated articles claiming that Tamils continue to be persecuted in Sri Lanka.

    e.A copy of the applicant’s interview with the Department on 14 November 2012.

    f.A copy of the applicant’s interview with the Department on 8 August 2017.

20. The applicant produced to the Tribunal the following documents:

    a.A copy of the delegate’s decision.

    b.Submissions from the applicant’s representatives.

    c.A pre-hearing submission from Mr Bayliss dated 31 May 2023.

    d.A reference letter regarding the primary review applicant dated 28 May 2023 from [Mr A], [of Organisation 1].

    e.A reference letter regarding the primary review applicant dated 31 May 2023 from [an office bearer] of [Organisation 2] of Queensland, [Mr B] accompanied by photographs.

    f.Social media posts, photographs and news articles of the primary review applicant’s involvement as [office bearer] with [Organisation 2].

    g.A recommendation letter from the primary review applicant as [office bearer] of [Organisation 2] dated 18 November 2020 regarding [Mr B].

    Country of reference

21. The primary applicant claims to be a citizen of Sri Lanka. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

22. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing

23. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicants that to be granted a protection visa, the primary applicants must either be recognised as a refugee or be a person entitled to Complementary Protection.

24. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Sri Lanka. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Sri Lanka. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

25. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Sri Lanka.

26. The Tribunal discussed his claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. He stated they were and that he did not need to change them.

27. The Tribunal noted that it had provided to the applicant and his representative a copy of the delegate’s decision and they both confirmed having received it. The Tribunal asked if it was the case that [Applicant 1]’s only written statement was the one accompanying his protection visa application in 2016. His representative confirmed that this was the case. The Tribunal took [Applicant 1] to his 2016 statement and asked him to describe the events that led up to his departure from Sri Lanka. He said he was a Tamil Sri Lankan citizen and that he was born and raised in  Mullaitivu. He said the area had always been under LTTE occupation and so he and his family had to support the LTTE. He said that when the war ended, the area was surrendered to the army, so his family was moved into a refugee camp. He said that, while he was there, army personnel moved among the residents of the camp and separated out people who, because of their age, were suspected of supporting the LTTE. They were questioned and some were arrested. He said that there were NGOs operating in the area and, with their help, were able to leave the camp and settle in the Vavuniya area. He said the population was a mixture of Tamils and Singhalese. He said he then had to find a way to support his family. He said he opened a [shop] somewhat out of town. He rented the premises from a Singhalese woman, [Ms A]. The business started making money.

28. [Applicant 1] said that, a little while after opening the business, [Ms A]’s husband left her and went to a foreign country. She came to [Applicant 1] and asked him for money to help her out, but he refused. She said that, if he did not help, she would cancel the lease and report him to the authorities as an LTTE supporter. He said he did not take this threat seriously at first. He contacted the salon operator’s society. He said that he could not close his business without giving three months’ notice to the society. He had had to obtain the society’s approval to open the shop and the society had also lent him money to acquire the necessary equipment. The landlady returned a short time later and told him that if he did not vacate the premises she would report him to the CID. He went to the society and was told he did not need to vacate the shop and that someone from the society would speak to his landlady.

29. [Applicant 1] told the Tribunal that, two or three days later, two men came to the shop on a motorcycle and waited outside. He said that he thought they were customers. When he had finished with his customer, he went outside. The men approached him and asked, “Are you [Applicant 1]?” He said that he was. The men said that [Applicant 1] and his wife would have to come to their camp by six that evening with their identity cards. He asked them what the problem was. They told him that he and his wife were both LTTE and would have to report to the camp. He said that he was scared, told his customers to leave and closed the shop.  He went home and told his wife what had happened. He, his wife and the children went to his [sister’s] house. That evening, a neighbour visited and told him that some men had been to his house, and that they had been searched the house.

30. The Tribunal suggested that in his statement [Applicant 1] had said that, on the first evening, the men had come to the house and spoken to his wife. He said that the men had been to his house and asked his wife where he was, she told them he was at the shop, and they had then come to speak to him at the shop. The Tribunal put it to him that this was not what he had said in his statement. He said he had given the statement a long time ago and he was a bit confused.

31. The Tribunal suggested that his previous statement was that the CID had come to see him at the shop and told him and his wife to report to them at six that evening. He said that was right. The Tribunal said that he had then said he did not report to them that night, did not open his shop the next day, and that the CID then came to the house and spoke to his wife. He said after the men left the first day, he went into town and spoke to the salon society. The Tribunal put it to him that this was not in his statement. He said that this what happened. He said that the CID then went to see his wife and told her that they had asked [Applicant 1] to report to them at six but that he had failed to show. He said that he and his wife were scared and they then fled to his sister’s house.

1. The Tribunal suggested that the important elements of his claims cover a very short period of time and were very simple. He said the relevant events took place ten to twelve years ago and that he could not be expected to remember everything that happened. The Tribunal suggested that he had provided a written statement with professional assistance in May 2016 and that he was aware that these claims were central to his obtaining a protection visa. It asked if the CID went to see his wife on the first day, or the second day, or not at all. He said they went to see his wife when he failed to report at 6pm. The Tribunal asked if it was that day or the next day. He said he thought it was that evening, but it might have been the next day.

2. The Tribunal asked how he knew the men were from the CID. He said that they knew his name and spoke to him in Tamil. The Tribunal asked if they might not have been local men engaged by his landlady to scare him. He said they were Tamil and identified themselves as CID.  The Tribunal put it to him that, at paragraph 15 of his statement, he had said they were Sinhalese men. He said that they were Tamils who had joined the CID, and were able to speak Sinhala. 

3. The Tribunal put it to [Applicant 1] that the material parts of his claims were contained in paragraphs 15 and 17 of his statement, yet his evidence to the Tribunal was not consistent with those brief passages. He said it was a long time ago now.

4. The Tribunal heard from [Applicant 2]. It asked when she first heard that her husband had been visited by the CID. She said they spoke to her husband and then they visited her house the following day. The Tribunal asked if her husband had come home from work and told her that the CID had been to see him. She said that was right. The Tribunal asked what he had told her. She said that they had said, “We have to make inquiries of you. We suspect you, so you both have to come and see us tomorrow.” The Tribunal asked if she was sure that they had asked to see her husband and her the following day. She said that was right. The Tribunal asked what happened the next day. She said they did not go to see them because they feared they would be detained. The Tribunal asked if the CID ever came to see her. She said they came to see her the day after they had spoken to her husband.  The Tribunal asked why they would do that if she and her husband were not even late for the appointment. She said that they came to see her in the evening. The Tribunal put it to her that her husband had said they had come at 5pm. She said all she recalled was that it was after the children were home from school. The Tribunal suggested that her husband had claimed that the CID had given her a message. She said that the message was that she and her husband had lived in an LTTE-controlled area and were therefore suspect., and that they should both attend the CID office for a meeting. The Tribunal asked when that meeting was to take place. She said they asked her to attend the next day but she could not recall a time.

5. The Tribunal reiterated that it did not understand why the CID had come to see her when, on her evidence, her husband was not yet late for the meeting. She said that her husband had been due to see them the previous day but he had not turned up. The Tribunal suggested that she had changed her evidence: she had previously said that her husband had come home and said they both had to attend the CID office the next day.

6. The Tribunal asked how she knew the men were from the CID. She said they had identified themselves as CID. The Tribunal asked is he could describe them.  She said they were Singhalese but spoke Tamil. The Tribunal asked where her husband was at this time.  She said he was in hiding at his [sister’s] house, which was in [Village 1]. The Tribunal asked how long it took to travel from her house to [Village 1]. She said it took about [number] minutes.  The Tribunal asked if the whole family had stayed there. She said they stayed there first, and then moved from place to place before leaving for Australia. The Tribunal asked if her husband had gone to the sister’s house a day earlier than the rest of the family.  She said that was right. The Tribunal asked what had happened with her husband’s shop.  She said they had left the house as it was and left the shop closed up with all its equipment.  When they got to Colombo, they asked her brother to deal with the house and to return the shop to the lessor.

7. The Tribunal heard further from [Applicant 1]. It asked if he could expand on his claims relating to [Ms A]. He said that he came to know that her brother held a high position in the army. The Tribunal asked how he had come to know this. He said that normal people would not be able to arrange things the way she had, and she was able to do it because of her connections.  The Tribunal put it to him that this was a guess.  He said it was impossible to see how these networks operate. The Tribunal asked how he had come to learn that [Ms A]’s brother was a high-ranking military officer. He said that, after he had closed down the shop, some of his customers called him to ask why he had closed down. When he told them of the incident, they said he was right to close it down because these people were connected with the army. The Tribunal asked if the customers had contacted him on his mobile phone. He said that was correct.

8. The Tribunal asked how long he had stayed with his sister in [Village 1]. He said it was about 20 days to a month. He said he could not stay longer because the CID knew he had relatives and would find and arrest him there. The Tribunal suggested that they also knew he had a mobile telephone call and asked if they had tried to call him. He said they had not.  The Tribunal asked if they ever contacted his relatives. He said that, after the family arrived in Australia, he got word from his brother-in-law that the CID had approached him and told him to bring the applicants in to them. The Tribunal put it to him that this was not in his statement. He said that he only contacted his family after he got to Christmas Island. His family had told him that it was good he had left Sri Lanka because the CID had threatened his brother-in-law. The Tribunal asked if he had kept a note of this conversation or had a record of the date. He said he did not realise that doing so might be helpful.

9. The Tribunal took [Applicant 1] back to his statement and noted that he had claimed that his [shop] had been quite prosperous, to the extent that he was able to set up a side business as a moneylender. He said that was correct. The Tribunal suggested that he had claimed that he would charge about 15% interest and would take security for his loans. He said that correct. The Tribunal further suggested that his evidence was that this security included charges over land and vehicles. He said that was correct. The Tribunal suggested that this was a sophisticated business. He agreed. The Tribunal asked if, in relation to the loans to [Ms A], he could have recovered her debts by deductions from the rent of the shop.  He said if he did this she would have asked him to vacate the shop. He said the law was no help in Sri Lanka.

10. The Tribunal asked why, if the CID was so intent on arresting him in May 2012, they would not just take him away when they attended at his shop. He said he did not know how they operated. He said that, because it was daytime, they did not want people to see them. The Tribunal asked why they would not come by as he was closing the shop. He said that, after they left, he immediately closed the shop, went home and told his wife and then went into hiding. The Tribunal suggested that this was not his previous evidence: his statement was not that he went straight in hiding, but that he still in the township the next day. The Tribunal further put it to him that his behaviour suggested that he did not fear being arrested. He said that he was not scared the first day, but he was sure he was in danger when they came to the house the next day. The Tribunal suggested that he had never been detained by the CID. He said he knew, if he had been detained, there was no way he would be released.  The Tribunal suggested that, as the leader of a diaspora organisation, he was aware that many Tamils had claimed to have been detained and released. He said that people with influence and connections could get released, but for normal people like him that was not the case. The Tribunal suggested that, if this had been the intention, he would have detained on the spot. He said that had kept looking for him, even after he came to Australia, so they were clearly very interested in him. The Tribunal put it to him that the evidence suggested that the CID could not have been very interested in him: even after he failed to attend the office, his wife was not arrested and he was given another chance. He said it was obviously a very serious matter. The Tribunal put it to him that it was not that serious: he was never detained and he was given two opportunities to make a voluntary attendance. He said that, if he and his wife reported to the office, they believed they would be taken away and shot, and their bodies dumped, and their children would have been orphaned.

11. The Tribunal asked if he and his wife left town together that night or if they left at separate times. He said they asked him to attend at 6pm so he did not stay at home. He said that his wife was at home the next day. They left together that night. The whole family fled to his sister’s house by motorcycle.

12. The Tribunal asked [Applicant 1] if he had been involved with Tamil diaspora organisations in order to strengthen his protection visa claims. He said this was not the case. He said there were many Tamils in Australia without visas who needed support. Their activities include raising funds for funerals, helping with food and rent payments, and providing assistance to the Labor Party on polling days.

13. The Tribunal put to [Applicant 1] country information from the Department of Foreign Affairs and Trade that even former active ordinary members of the LTTE were unlikely to be of any particular interest to the Sri Lankan authorities. DFAT was also unaware of any returnees from Australia being charged under the Prevention of Terrorism Act. He said that LTTE leaders in detention were being given injections which destroys their cells and kills them gradually. The Tribunal asked if he had a source for this claim. He said that this information came from Tamils back in Sri Lanka. 

14. The Tribunal asked if he wished to comment on country information to the effect that he was unlikely to have any security risk profile or to be of significant interest to the Sri Lankan authorities. He said that the Sri Lankan government are killing the Tamil people day by day, especially the youth, to eradicate the whole race. He said that Sinhalese ministers are importing drugs to facilitate a genocide of the Tamils. He said that there are continuing anti-Tamil policies in Sri Lanka.

15. The Tribunal suggested that [Applicant 1] had claimed that his moneylending activities might place him at risk if he returned to Sri Lanka. He said that there were still people who owed money to him and who might seek to do him harm to avoid payment. The Tribunal asked if he made any arrangements in relation to the securities he held before leaving Sri Lanka.  He said he had not. The Tribunal asked what had happened to them. He said he left everything in a suitcase. He accepted that some of his former customers might have been annoyed about the loss of their title documents.

16. In closing, [Applicant 1] asked the Tribunal to accept that, because of his flight from the CID and his activities in Australia on behalf of the Tamil diaspora, he would immediately come to the attention of the authorities on his return to Sri Lanka and that he would be imprisoned, putting his life at risk.

    Assessment of claims and evidence, and findings:

17. 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 an 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

18. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

19. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

20. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

21. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

22. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

23. The Tribunal has considered carefully all of [Applicant 1]’s claims, individually and cumulatively, and makes the findings set out herein.

    The applicant’s claims generally

24. [Applicant 1]’s narrative and claims encompass, in their essence, a short period of time and a simple timeline. Leaving aside the background, they effectively involve two incidents over a span of two days in May 2012: the visit of the CID officers at the [shop], and then at his home. Nevertheless, the evidence given by [Applicant 1] and [Applicant 2] to the Tribunal as to the details of these events was by no means clear.

25. In his statement of May 2016, [Applicant 1] claimed that he was initially approached by two Sinhalese men who accused him of being an LTTE supporter and directed him to attend with his wife at the CID office that evening at 6pm. He said he did not attend out of fear, but that at around 5pm the next day, two men claiming to be from the CID called on his wife and told her that if she and [Applicant 1] did not attend the following day by 6pm they would be arrested. That night, they fled to [Applicant 1]’s sister’s house in [Village 1].

26. In his evidence to the Tribunal, [Applicant 1] described the men from the CID as Tamil. He maintained that description when the inconsistency was put to him. He claimed that, straight after they had spoken to him, the family fled to [Village 1]. When the claim about the visit to his wife was put to him, he stated that the CID men had come to the house and his wife had told them he was at the shop. When his original statement that the CID had visited his wife the next day was put to him, he adopted it but omitted the request that they attend by 6pm that day.(i.e., the day of the visit to his wife). He claimed that the whole family fled to [Village 1] together by motorcycle.

27. In her evidence, [Applicant 2] told the Tribunal that her husband had come home from work and told her that they were to directed to attend at the CID office the next day. She maintained that when the Tribunal questioned her about the inconsistency with her husband’s statement that they were to attend that day, i.e., the evening of the day of the visit to the [shop]. When asked about the events of the following day, she did not mention her own visit from the CID until prompted. She claimed that she and her husband were directed to attend at the CID office the day after the visit to the home, not that evening as claimed in [Applicant 1]’s statement. She claimed that the family fled to [Village 1] separately, [Applicant 1] having left first and she taking the children the following night.

28. While I accept that some allowances must be made for the passage of time since the events were claimed to have occurred, there are numerous inconsistencies in the versions presented by [Applicant 1] and [Applicant 2] both with the claims previously made and with each other’s accounts , such that it is difficult to accept that the events occurred as claimed by either of them, or at all. However, I am prepared to accept that [Applicant 1] was threatened with denunciation to the CID by [Ms A] and that he was visited by a person or persons either associated with the CID or claiming to be, at [Ms A]’s behest. However, I cannot be satisfied on the evidence that [Applicant 1] was genuinely a person of interest to the CID because no steps were taken to arrest or detain him, even after (as he claims) he failed to attend at the CID office. On his evidence, he stayed with a close family member for about a month without incident, and the CID never attempted to contact him by telephone. [Applicant 1]’s claims of continuing investigations by the CID are extremely vague and not at all convincing. His claim that his brother-in-law was approached in about 2012 is not mentioned in his previous evidence and I am satisfied that it is of recent invention.

29. After assessing the evidence of [Applicant 1] and [Applicant 2] in addition to the material and evidence [Applicant 1] has previously provided, the Tribunal:

    ·Accepts that [Applicant 1] was denounced to the CID by [Ms A], in order to extort funds from him or to procure the termination of his lease, or both;

    ·Accepts that [Applicant 1] was approached by a person a persons associated with the CID, or purporting to be associated with the CID, but does not accept that there was a second visit because the evidence on that matter is so inconsistent;

    ·Accepts that [Applicant 1] and [Applicant 2] were subjectively fearful of the CID;

    ·Does not accept that [Applicant 1] was genuinely suspected by Sri Lankan authorities of LTTE involvement because:

    oNo effort was made by the CID to arrest him when he was located and confronted;  and

    oNo serious effort appears to have been made to locate him after he left his home and business; and

    ·Does not accept that [Applicant 1] or [Applicant 2], or either of them, are of security interest to the Sri Lankan authorities by reason of any of their claims relating to the incidents of May 2012.

1. Accordingly, the Tribunal is not satisfied that [Applicant 1], or any of the applicants have a well-founded fear of persecution by reason of the claimed events of May 2012, any subsequent investigation of them, or any other matter associated with them.

2. [Applicant 1] has additional claims relating to his membership of particular social groups. 

   Tamil ethnicity/imputed LTTE sympathy or involvement

3. The Tribunal accepts that [Applicant 1] and his family are of Tamil ethnicity.

4. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[3] reports the following on Tamils:

   [3] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at pp 18-20.

   3.4 According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.

   3.5 Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.

   3.6 DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.

   3.7 DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.

   Monitoring, harassment, arrest and detention

   3.8 Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner (see Liberation Tigers of Tamil Eelam).

   3.9 Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events (see Civil society organisations and government critics and Media).

   3.10 Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora (see Liberation Tigers of Tamil Eelam).

   3.11 LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.

   3.12 Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.

   3.13 DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.

5. The Situational Update on Sri Lanka, from the Department of Home Affairs (27 July 2023), reports:

   The government has made moves towards improving relations with Sri Lanka’s Tamil community. The government has held talks with Tamil political groups, and has indicated that it intends to fully implement the 13th amendment to the Constitution, which would give more powers to the provinces over land, the police, education, health, agriculture, housing and finances. While the government continues to acquire land in the north and east to expand military camps, in June 2023 President Wickremesinghe ordered that the Department of Archaeology halt the acquisition of land in the north and east and clashed publicly with the head of the department, who later resigned, during a discussion on land claimed by Tamil private citizens but designated ‘forest land’ by the department. In August 2022, the government announced that the national anthem would be sung in Tamil as well as Sinhala at Sri Lanka’s Independence Day celebration in February 2023, reversing a decision made by the previous government to discontinue the practice. On 1 August 2022, the government published an Extraordinary Gazette lifting a ban on six Tamil diaspora organisations: Global Tamil Forum (GTF), the Canadian Tamil Congress, the Australian Tamil Congress (ATC), the Tamil Eelam People’s Federation, the Tamil Youth Organisation, and the World Tamil Co-ordinating Committee. The government also lifted a ban on 316 individuals including GTF spokesperson, Suren Surendiran.[4]

   [4] Department of Home Affairs, Country of Origin Information Services Section, Situational Update Sri Lanka (27 July 2023), p 7 [footnotes omitted]

6. Material was submitted to show that [Applicant 1] is a current committee member of the [Organisation 2] of [Queensland], having been [an office bearer] from [May] 2019 to [May] 2021.  As to the activities of [Organisation 2] and [Applicant 1]’s other political activity in Australia, it was submitted on his behalf:

   In his roles as [office bearer] and Committee Member of [Organisation 2] he has publicly advocated for and supported Tamil Genocide Memorial Day which marks an act of genocide undertaken by the Sri Lankan authorities on 18 May 2009 against the Tamil people of Sri Lanka, resulting in the deaths of tens of thousands of innocent Tamil people.  In January 2021 he signed a statement released by [Organisation 2] protesting against [deleted].

   [Applicant 1] is on the organising committee for the annual [LTTE] “Maaveerar Naal” or Great Heroes Day (GHD) which occurs annually since November 27, 1989.  As [an office bearer] of [Organisation 2] he also assists with fundraising activities to benefit the Tamil community in Sri Lanka and works closely with [Organisation 1] to promote the concerns of Tamils both in Australia and Sri Lanka.

   [Applicant 1] instructs us that he has a strong political opinion against the Sri Lankan Government dues to the atrocities carried out by the Sri Lankan forces at the end of the war which killed thousands of Tamils.  He believes the Sri Lankan Government committed genocide and war crimes and he strongly believes in the importance of attaining a Separatist Tamil State (Tamil Eelam).  As a Tamil living a sage life here in Queensland, he feels a sense of social responsibility to create awareness about the genocide that happened to the Tamil people and the war crimes and human rights violations committed by the Sri Lankan authorities.

7. He provided the following material to the Tribunal in support of his political claims:

   (a)A letter from [Mr A],[of Organisation 1], dated 28 May 2023, the relevant parts of which are:

   I have known [Applicant 1]since May 2018.  I had interactions with him since he contacted me from Queensland regarding some welfare activities for the recent [arrivals].

   [Applicant 1] is one of the [members] of [Organisation 2].  He served as [an office bearer] of [Organisation 2] for two terms as well.  Among the objectives of [Organisation 2] are to develop a positive environment for recently arrived Tamil people to establish opportunities to interact closely with mainstream Australians and the multicultural communities, and to facilitate self-esteem and self-belief for the refugees.  [Applicant 1] and [Organisation 2] members organised various activities to enable healthy distraction from trauma and stress for the recent arrivals.  As [an office bearer] and as an active member of [Organistion 2], [Applicant 1] undertook a range of activities to assist people, such as working with people with physical and mental health issues to seek professional support.  Further, [Applicant 1] and [Organisation 2] organised several funeral services for the Tamil refugees and asylum-seekers who passed away in Australia with no direct relatives in this country.  They initiated case-specific fundraising as well to afford a dignified funeral with religious rituals.  Such activities are much appreciated by refugees and asylum-seekers, and the greater Tamil community.

   [Applicant 1] has mentioned to me about his and his family’s involvement in political activism in Sri Lanka.  He works with [Organisation 1] and other Tamil organisations in Australia, who strongly make a case for the alleged war crimes and ethnic cleansing in Sri Lanka during the war mainly in 2006-20009.  [Applicant 1] volunteers in the preparations of Remembrance Day events for the killed Tamils.  He is certain that returning to Sri Lanka is not an option for him, despite the perceived peace in Sri Lanka at this time …

   I believe [Applicant 1] is among the vulnerable individuals who would most likely to be targeted and subjected to undue hardship if he is returned to Sri Lanka, hence needs protection.

   (b)A letter from [Mr B], President, [Organisation 2], dated 31 May 2023, which reads:

   Confirm that [Applicant 1] is an active member of our association since the organization is incorporated in 2017.  He regularly participates in our meetings and community events.  He was [office bearer] since [date]-05-2019 until [date]-05-2021 of our association.  He helps our Tamil diaspora community in many ways during their difficult time.  His contribution to arrange the funerals of Tamil diaspora who don’t have any support or family members in Australia is very much appreciated by our community.

   Also, Arts, Cultural, ethnic, language, politics and distribute the food items to the peoples in need during this Pandemic, [[Organisation 2] is happy to endorse the good character of [Applicant 1] for our best knowledge.

   (c)A bundle of six uncaptioned photographs comprising four depictions of [Applicant 1] and others at an unidentified public event or events,  one depiction of [Applicant 1], [Applicant 2] and others with [named] MP, and one depiction of [Applicant 1] and others at a polling station in support of [named] MP.

   (d)A bundle of six [social media] screenshots, comprising:

   oAn advertisement for[deleted];

   oA post by the [Organisation 2] dated [May] 2023, with a video [deleted]

   o[Organisation 2] post dated [April] 2023 of a photograph of people holding placards;

   o[Organisation 2] post dated [April] 2023 promoting [deleted];

   o[Organisation 2] post dated [May] 2020, [deleted]

   o[Organisation 2] post dated 18 May 2020, referring to [deleted].

   (e)An unsigned letter from ‘[Applicant 1]”, [office bearer] of [Organisation 2], dated [November] 2020, in support of [Mr B] in very similar terms to the letter quoted at subparagraph (b).

8. The Tribunal has considered all of this material.  It notes that [Applicant 1] made no mention of any political involvement in his statement of 2016 and no claims of that nature were made to the delegate.  His claimed political activity postdates the refusal of his protection visa application in August 2017.  [Applicant 1] did not provide an updated statutory declaration for his Tribunal application and there is therefore no direct evidence from him as to the depths of his political views as described by his representative in paragraph 66 above.  When asked to describe his activities with [Organisation 2] (see paragraph 43), he referred to fundraising for funerals, helping with food and rent payments, and providing campaign assistance to the Australian Labor Party.  Activities of this nature are attested in [Applicant 1]’s and [MrB]’s letters for each other (subparagraphs 67(b) and (e) above), the second quoted paragraph of [Mr A]’s letter and the bundle of photographs he has submitted.

9. The submissions from [Applicant 1]’s representative refer to a January 2021 [Organisation 2] statement signed by [Applicant 1].  This statement was not included with material submitted to the Tribunal.  The representative’s characterisation of [Applicant 1]’s political views were described as instructions and were not given in evidence by [Applicant 1].  The Tribunal treats those submissions as advocacy rather than evidence.  Similarly, the history of [Applicant 1]’s political activism given by [Mr A] is, in its terms, as described to him by [Applicant 1].  It also mentions [Applicant 1]’s family’s involvement in political activism in Sri Lanka, which is not mentioned in any other evidence.  The Tribunal gives these descriptions no weight.

10. Of the evidence of [Organisation 2] activity said to be evidenced by the [social media] posts, the Tribunal accepts that the [Organisation 2] has been involved in the Justice for Refugees event, the Palm Sunday rally, and the event of [April] 2023 in which placards reading “[deleted]” or similar are depicted.  It also does not consider that any of these events or advocacy are matters of security concern to the Sri Lankan government.

11. The material said to demonstrate activism in relation to Mullivaikkal commemorations consists of three [social media] posts.  The low user engagement with the video posted on [May] 2023 suggests it may be a private post.  There is no indication as to the extent of user engagement, if any, with the posts [in] May 2020.

12. The Tribunal has considered the remarks and guidance on social media evidence, and the surveillance of social media by governments in the decision of the UK Upper Tribunal in XX v Secretary of State for the Home Department [2022] UKUT 00023.  It considers the following guidance to be relevant:

    ·Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available in the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.

    ·It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data.  For the same reason, where is a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.

    In respect of the claim that [Applicant 1] has come, or would come to the attention of the Sri Lankan authorities by reason of his claimed activism or social media activity, the Upper Tribunal’s guidance is to the effect that the capacity of a government to conduct social media surveillance of its external citizens is limited and evidence would be needed to indicate that the person is of significant adverse interest.

13. Applying this guidance, the Tribunal considers the [social media] posts, which are apparent printouts of an internet page, are of very limited evidential value.  [Applicant 1] has presented no evidence that suggests the Sri Lankan authorities maintain any interest in him and, accordingly, the Tribunal cannot be satisfied that any of his social media activities have come to their attention.  There is no evidence that any of his [Organisation 2] activity the existence of which I have accepted is of interest to the authorities.  Accordingly, I cannot be satisfied that [Applicant 1] has a well-founded fear of persecution by reason of his sur place political activities in Australia.

14. Because the Tribunal is not satisfied that [Applicant 1] is or would be associated with politically sensitive issues by the Sri Lankan authorities, it is not satisfied that there is a real risk that he would be subject to monitoring, harassment, arrest or detention by reason of his Tamil ethnicity, his imputed sympathy with the LTTE or his imputed political opinion.

15. The Tribunal has also considered the prospect that [Applicant 1] faces a risk of harm by reason of his Tamil ethnicity related to the reaction to the 2019 Easter Sunday terrorist attacks, and under the Prevention of Terrorism Act, as amended or replaced.

16. In relation to the terrorist attacks, the Department of Foreign Affairs and Trade reported in December 2021:

    The 2019 Easter Sunday suicide bombing terrorist attacks, carried out on 21 April 2019 by local Islamic extremists (National Thawheed Jammath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI)) and inspired by Daesh (ISIL/Islamic State), targeted three luxury hotels in Colombo (Western Province) and three Christian churches in Colombo, Negombo (Western Province) and Batticaloa (Eastern Province). More than 250 people were killed in the bombings with another 490 injured. A Commission of Inquiry has investigated the bombings but, as at the time of publication, the Commission’s report had not been publicly released. The Catholic Church in Sri Lanka has repeatedly raised concerns about the ongoing lack of justice for victims and the Government’s handling of the investigations. The Commission’s work and broader efforts to seek accountability have become highly politicised, including due to allegations of links between intelligence personnel and the groups that carried out the attacks, and of negligence by high-ranking officials including former President Sirisena.

    The Sri Lankan Government claims it has killed or apprehended all those directly involved in the 2019 Easter Sunday terrorist attacks. Nearly 2,300 individuals were arrested in connection with the attacks, up to 300 of whom reportedly remain in police custody at the time of publication. The Sri Lankan Government proscribed the NTJ, the JMI and a third local Islamic extremist group, Willaayath as Seylani (WAS), as terrorist entities. According to media reporting, in May 2021, the Sri Lankan Ministry of Defence said it had no information about any current terrorist threat in Sri Lanka …

    The Government no longer restricts travel to the north and east. It removed security checkpoints on major roads in 2015, although some were re-established following the 2019 Easter Sunday terrorist attacks. DFAT understands some security checkpoints re-established in the north post 21 April 2019 have since been removed. Local sources report that roadblocks were significantly re-established in 2020-21, ostensibly to combat COVID-19 and drug trafficking. However, sources note these roadblocks are common in the north and east, and far less common around Colombo, which does not reflect relative COVID-19 risks in these locations.[5]

    [5] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Sri Lanka’ (23 December 2021) at p 17

1. The most recent situational update from the Department of Home Affairs[6] does not cite the 2019 events as a current issue for Tamils in Sri Lanka. Accordingly, I cannot be satisfied that either the reaction to, or the perpetration of, the 2019 terrorist attacks give rise to a well-founded fear of harm on the part of [Applicant 1].

   [6] Department of Home Affairs (27 July 2023), op cit

2. The Department of Foreign Affairs and Trade reports the following on the Prevention of Terrorism Act 1979 (‘PTA’):

   The PTA was enacted as a temporary measure in 1979 to counter separatist insurgencies. It was made permanent in 1982 and remains legally in force. The PTA is not part of regular criminal law and contains special provisions on detention and the admissibility of confessions. The PTA allows arrests for unspecified ‘unlawful activities’, permits detention for up to 18 months without charge and provides that confessions are legally admissible. Prior to the 2019 Easter Sunday terrorist attacks, the PTA was used mainly to target those suspected of involvement with the LTTE. It was used only sporadically between 2016 and April 2019 following the then-government’s commitment to repeal and replace the PTA under HRC Resolution 30/1 (2015). During the civil war, authorities detained more Tamils under the PTA than any other ethnic group. The PTA has been used for many years to detain people in prolonged and often arbitrary detention. According to the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his 2017 report, 70 people had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. According to the HRCSL, as of 31 January 2018, about 15 per cent of PTA suspects had been in detention for 10 to 15 years, and about 41 per cent had been in detention for five to 10 years. As at 2021, many of these detainees are still being held.

   DFAT is not able to verify the precise number of individuals currently held under the PTA. One local source estimated that 300 Muslims and 60 Tamils are being held under this legislation. A large number of Muslims were detained under the PTA following the 2019 Easter Sunday terrorist attacks. In 2021, the Sri Lankan police were still arresting Muslims in connection to the bombing. For example, in April 2021, opposition MP Rishad Bathiudeen and his brother Riyadh were arrested by CID for allegedly assisting the terrorists responsible for the 2019 Easter Sunday terrorist attacks. The brothers have claimed the arrest was political. The Government has not explained the nature of their alleged connection to the bombing. The brothers have since been released on strict conditions of bail.

   The Government has used the PTA for purposes with arguably limited connection to terrorism. In May 2020, police arrested Ahnaf Jazeem, a 26-year-old teacher and Tamil poet, based on allegations that his poetry collection promoted ‘religious extremism’. In December 2021, Jazeem was charged under the PTA and released on bail. Human rights observers have reported other cases with respect to Muslims, including: Hejaaz Hizbullah, a Muslim human rights lawyer in custody since 14 April 2020 and eventually charged with an offence under the International Covenant on Civil and Political Rights (ICCPR) Act; and, Ramzy Razeek, a retired government official, detained in April 2020 for posting on Facebook about religious extremism.

   The PTA has also recently been used against Tamils. Media reported a Tamil man was arrested by Eravur police in April 2021 for allegedly sharing a photo of LTTE leader Prabhakaran, while Jaffna Mayor, V. Mannivannan, was arrested by TID in April 2021 under accusations of attempting to resurrect the LTTE, allegedly because the choice of uniforms for a municipal environmental enforcement team resembled those of the LTTE. DFAT is not aware of returnees from Australia to Sri Lanka being charged under the PTA.

   In 2015, President Sirisena committed to repeal and replace the PTA with improved counter-terrorism legislation. This proposal, which was criticised by some human rights defenders as being as bad or even worse than the PTA, lapsed with that Government. In June 2021, the European Parliament adopted a resolution urging the EU Commission to consider temporary withdrawal of the Generalized System of Preferences preferential trade agreement from Sri Lanka, if it did not reform the PTA. In its response the Sri Lankan Ministry of Foreign Affairs rejected the claim that detention under the PTA had resulted in arbitrary detention but nevertheless promised to ‘revisit’ provisions of the Act to propose ‘necessary amendments’.

   In March 2021, the Government added ‘de-radicalisation regulations’ to the PTA which allow for arbitrary administrative detention of individuals for up to two years without trial. The Government also proscribed 300 Tamil and Muslim groups and individuals allegedly ‘linked to terrorism.’ On 5 August 2021, the Supreme Court, in response to Fundamental Rights Petitions filed by several activists, issued an Interim Order suspending the operation of Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021. These petitioners argued that individuals arrested under these new regulations could be subject to potentially indefinite detention under the guise of rehabilitation, without judicial review. A court hearing of the matter remains stalled at the time of publication.

   In September 2021, during the UN Human Rights Council Session, the Sri Lankan Government announced a Cabinet sub-committee had been convened in June to ‘review’ the PTA within three months. Its report was not available at the time of publication, however, according to media reports, the committee presented its report to the President on 15 November 2021.[7]

   [7] Australian Department of Foreign Affairs and Trade, op cit, at pp 42 -43

3. The most recent country information available to the Tribunal on the PTA is that:

   In March 2023, the government introduced the Anti-Terrorism Act (ATA), intended to replace the Prevention of Terrorism Act (PTA). However, after widespread criticism that the proposed legislation contained a vague and overbroad definition of terrorism, and gave police and the military sweeping powers to stop, question, search and arrest anyone without a warrant if they believed they had ‘reasonable grounds’, the bill was not passed and was recalled for further consultations.[8]

   The Tribunal notes that the Department of Foreign Affairs and Trade is not aware of any returnees from Australia being charged under the PTA. The Tribunal considers that, while the PTA has historically been used extensively against Tamils, there is no information before it that would suggest that [Applicant 1] is, or has ever been, at risk of being charged or detained under its provisions.

   Hindus

   [8] Department of Home Affairs, op cit, at p 5

4. The most recent country information report from the Department of Foreign Affairs and Trade reports the following on Hindus:

   About 13 per cent of Sri Lankans are Hindu, including most Tamils. Hindus account for a majority of the population in the Northern Province, and practise their faith freely there and elsewhere in Sri Lanka. Local sources told DFAT that the Department of Archaeology routinely sided with Buddhist monks claiming Hindu archaeological sites in the north and east as Buddhist sites. DFAT is not aware of any organisations in Sri Lanka that systematically document violations against Hindus and, as such, cannot verify this information.[9]

   [9] Ibid at p 23

5. The Tribunal cannot be satisfied on the evidence before it that [Applicant 1] faces a real risk of harm in Sri Lanka by reason of his Hindu faith.

   State protection

6. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[10] reports the following on state protection:

   5.1 Sri Lanka has no laws or government policies that hinder access to state protection on the basis of religion or ethnicity. All citizens have access to avenues of redress through the police, judiciary and the HRCSL. In practice, these avenues may be limited by linguistic barriers and by a lack of resources. Some Tamils in the north and east lack confidence in police and security officers and may therefore be less likely to use these avenues to seek redress.

   Police

   5.2 Sri Lanka Police is responsible for enforcing criminal law and maintaining general law and order in the country. It operates under the purview of the Ministry of Law and Order. It has a notional strength of around 85,000 members, and maintains an additional 8,100-member paramilitary Special Task Force. Like the military, most members of the Sri Lanka Police, including in Tamil-populated areas, are Sinhalese. In a historic first for Sri Lanka, in October 2021, three female Senior Superintendents of Police were promoted to the rank of Acting Deputy Inspector General as part of a series of reforms to encourage greater female advancements in the police force.

   5.3 Language remains a significant barrier to effective policing, particularly in the north and east. Police recruitment is national and officers rotate throughout the country during their careers. Most police officers are Sinhalese and only around 20 per cent of police officers in the Northern Province speak Tamil. There is an ongoing effort to recruit more Tamil-speaking police officers.

   5.4 The Assistance to and Protection of Victims of Crime and Witnesses Act (2015) established the National Authority for Protection of Victims of Crime and Witnesses, and a Victims of Crime and Witnesses Assistance and Protection Division within the police. Domestic and international civil society groups have raised concerns about the Act with respect to the appointment process for the National Authority, and the lack of independence of the Division from the police hierarchy, which could lead to conflicts of interest in cases of victim and witness intimidation by police.

   5.5 CID officers (for example, Nishantha Silva and Shani Abeysekara) who had investigated crimes involving the military, police or the Rajapaksa family have been harassed or forced to flee the country. Their investigations have been severely criticised as politically motivated victimisation by the PCOI, which itself is criticised by observers as a politically motivated institution designed to protect the present government.

   [10] Ibid at p 44

7. The Tribunal has also given consideration to the country information as to the impact of the 2022 economic and political crisis in Sri Lanka on state protection:

   Police have been affected by the economic crisis at the same time as crime rates have increased. In 2022, police were required to maintain order at fuel queues, impacting on their ability to conduct other forms of policing.  Reports indicate that crime, including gender-based violence and crimes against children, is increasing. In 2022, 523 homicides were reported, compared to 273 in 2019. More than 200 homicides were reported in the first five months of 2023.  At the same time, government services, such as domestic violence shelters, have limited capacity to respond. In August 2022, police were short 15 billion rupees (almost AUD61 million) to pay for services and equipment already supplied. Fuel shortages, and lack of funds to buy fuel when it is available, also impacted on the ability of police to respond to complaints made to 119, the police emergency hotline.[11]

   [11] Department of Home Affairs, op cit, p 9

8. The Tribunal considers that, although the impartiality and effectiveness of policing and security in Sri Lanka may be subject to searching criticism, there is insufficient evidence before it to be satisfied that [Applicant 1] would need recourse to state protection in respect of his claims to fear harm should he be returned to Sri Lanka in the reasonably foreseeable future.

   Treatment of returnees and conditions for returnees

9. The Department of Foreign Affairs and Trade’s latest country information report on Sri Lanka[12] reports the following on treatment of returnees and conditions for returnees:

   [12] Ibid at pp 47-50.

   Exit and Entry Procedures

   5.17 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.

   5.18 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.

   5.19 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.

   5.20 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.

   Offences under the Immigrants and Emigrants Act

   5.21 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.

   5.22 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.

   5.23 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.

   5.24 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.

   5.25 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.

   5.26 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.

   Conditions for Returnees

   5.27 Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.

   5.28 Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.

   5.29 Multiple local sources said that some returnees, especially those in the north and east with suspected LTTE links, have been the subject of monitoring by the authorities, involving visits to returnees’ homes and telephone calls by the CID. DFAT understands that most returnees, including failed asylum seekers, are not actively monitored on an ongoing or long-term basis. DFAT is unable to verify whether monitoring, where it occurs, is specific to former LTTE cadres. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had no protection concerns and had not experienced harassment by the authorities, nor received monitoring visits, but DFAT cannot determine if this is the case for all such returnees.

   5.30 Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship. Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions. Limited job availability in the north and east further contributes to difficulties in securing employment and housing. DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they were able to reintegrate into their communities and find employment. DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

   5.31 Some refugees and failed asylum seekers reported being pressured upon return to their communities, chiefly for being beneficiaries of financial reintegration assistance. Others experienced resentment upon return because they spent family funds on what proved to be a futile attempt at irregular migration. Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.

   5.32 DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities. DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.

1. [Applicant 1] claimed that he would immediately come to the attention of authorities on his return by reason of the events of May 2012 described above and his sur place political activities in Australia. For the reasons given in paragraphs 61 and 74 above the Tribunal is not satisfied that he is of any security or criminal interest to Sri Lankan authorities.  It does, however, accept that he may be subject to a relatively small fine as a consequence of leaving the country unlawfully. The assessment of DFAT, which the Tribunal accepts, is that, in the event he is charged, he would be entitled to bail. The Tribunal does not accept that he has a well-founded fear of persecution by reason of having left Sri Lanka unlawfully.

   Cumulative claims

2. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his Tamil ethnicity or for any reason arising from the claimed events of May 2012 (or any of these), or of being of criminal or security interest to the Sri Lankan authorities, or any other reason if he returns to Sri Lanka now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Sri Lanka. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

3. The Tribunal has considered the applicant’s claims under complementary protection, in particular, those relating to the operation of the PTA, hypervigilance as a result of the Easter 2019 terrorist attacks, and the condition of state protection.  It has also considered the extent to which the risk of any claimed or reasonably expected harm might be exacerbated by the 2022 economic and political crisis in Sri Lanka. In these and other respects, the Tribunal has noted the country information at Chapter 4 of the DFAT report. 

4. The Tribunal has also considered the effect of the 2022 economic and political crisis generally, in terms of its effect on the applicant’s capacity to subsist. The economic conditions prevailing in Sri Lanka affect the population generally. The Tribunal considers that [Applicant 1], at [age] with a successful business history in Sri Lanka and language abilities, would not be in a position of unusual vulnerability should he return to Sri Lanka. 

5. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Sri Lanka now or in the reasonably foreseeable future.

   Conclusion: Refugee Criterion

6. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H of the Act.

   Conclusion: Complementary Protection

7. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not 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 that he will suffer significant harm.

   Overall conclusion:

8. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).

9. 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).

10. 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

11. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants protection visas.

    James Lambie
    Senior Member

    
    

    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.

    …