1725608 (Refugee)

The case concerned an applicant for a protection visa who claimed to fear persecution in Sri Lanka. The applicant alleged he had been detained and tortured by the Sri Lankan Army (SLA) due to suspected links with the Liberation Tigers of Tamil Eelam (LTTE), had escaped from a refugee camp, and that his family members had been questioned by authorities searching for him. The dispute before the Tribunal was whether the applicant had a well-founded fear of persecution or, alternatively, faced a real risk of significant harm if returned to Sri Lanka.

The legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution in Sri Lanka for one of the five prescribed reasons, as defined by section 5J of the *Migration Act 1958* (Cth). If not, the Tribunal was required to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Sri Lanka, there was a real risk that he would suffer significant harm, as defined by section 36(2A) of the Act. This included assessing whether effective protection measures were available in Sri Lanka or if it would be reasonable for the applicant to relocate within Sri Lanka to avoid such harm.

The Tribunal considered the applicant's claims, including his alleged detention, torture, and fear of retribution from the SLA due to suspected LTTE affiliation and his escape. It also noted the applicant's family circumstances, including his wife's death and his children's residency in Australia. The Tribunal applied the principles outlined in Ministerial Direction No. 84, the 'Refugee Law Guidelines', and the 'Complementary Protection Guidelines', as well as country information from the Department of Foreign Affairs and Trade. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth), meaning Australia has protection obligations towards him because he is a refugee.