1727101 (Refugee)

1727101 (Refugee) [2023] AATA 1033 (20 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER:  1727101
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Sheridan Lee
DATE:20 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 January 2023 at 10:33 am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – ethnicity and imputed political opinion – forced recruitment into Liberation Tigers of Tamil Eelam (LTTE) as minor – non-combatant roles – arrest and torture by India peace-keepers – residence in third country because of fear of retribution from LTTE for failing to perform duties, and return during ceasefire – cousin arrested and disappeared, applicant interrogated and tortured and family threatened – physical and mental health and returned failed asylum seeker – credibility – generally consistent claims and evidence despite some discrepancies – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 35(2)(a), 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old Tamil man from Sri Lanka. He was born in [Village 1], Jaffna, Sri Lanka. The applicant is married with [children] who remain in Sri Lanka. Copies of his personal identification, marriage certificate and birth certificates for his children were provided to the Department of Home Affairs.
The applicant travelled to Australia by boat and arrived at Christmas Island [in] December 2011. The protection obligations evaluation officer first found that the applicant was not a person to whom Australia had protection obligations and the application was automatically referred for an independent protection assessment on 13 March 2012. He was granted a Temporary Humanitarian Stay, Subclass 449 visa, on 22 May 2012.
The applicant was interviewed by the independent protection assessor on 12 July 2012. The Tribunal does not have a recording of the interview; however a summary of the applicant’s evidence was included in the decision of the assessor. On 24 November 2012, the independent protection assessor recommended that the applicant be recognised as a person to whom Australia has protection obligations.
A valid application for a Safe Haven Enterprise, Subclass 790 visa, was made on 6 October 2015. The decision to refuse the visa application is the decision currently under review.
The applicant was represented in relation to the review.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
Claims and evidence
The applicant provided the following information during the application for protection assessment process:
·The applicant is a Tamil Hindu from Jaffna. He is married with [children] who remain in Sri Lanka.
·The applicant was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) in [Year 2] when he was in high school.
·In [Year 3], the applicant was arrested by the Indian Peace Keeping Force (IPKF) and detained for 15 days. He was severely tortured and has scarring to his body as a result.
·The applicant moved to Colombo in [Year 4] and lived in a government run refugee camp from [Year 5] to [Year 6]. In March [Year 7] he returned to Jaffna and began an apprenticeship at a [Workplace].
·In [Year 8], the Sri Lankan authorities took control of Jaffna. The applicant fled to [Village 2]. He was again forcibly recruited into the LTTE.
·The applicant undertook first aid training. He provided first aid to LTTE combatants during conflict.
·In [Year 10], the LTTE sent the applicant to Jaffna to coordinate LTTE members in the area. It was difficult to perform the role while the Sri Lankan army was rounding up Tamils. The applicant feared retribution from the LTTE for failing to perform his duties and fled to [Country 1] in May 1999. He returned to Sri Lanka in 2005 during the ceasefire.
·The applicant’s cousin, [Mr A], was active in the LTTE from [Year 11] to [Year 14]. Towards the end of the war, [Mr A] attempted to flee to [Country 2] with his family by boat. The family were captured by the authorities and transferred to an internally displaced person’s camp. The applicant’s uncle was worried [Mr A] would be transferred to a rehabilitation camp and paid a bribe to secure his release.
·[Mr A] and his family lived with the applicant in [Village 1] while their nearby house was repaired.
·On [Date, Year 14], the police, the Criminal Investigation Department (CID), and army came to the house and arrested [Mr A]. He has not been seen since the arrest.
·The applicant was also taken and interrogated at the time of [Mr A]’s arrest. After this event, the authorities would visit the applicant’s house at least once a month and threaten his family. He was told that his house was under surveillance.
·On [Date] 2011, the applicant was stopped on the road by CID while he was transporting vegetables. He was blindfolded and taken in a van to a house. He was questioned about the whereabouts of his cousin’s family and about his work for [a Country 3 organisation]. He was tortured and sexually assaulted.
·The applicant escaped when he was taken into the garden to relieve himself. He went to a friend’s house and received medical treatment. The applicant then travelled to [Town] and planned to flee Sri Lanka. The applicant’s home was attacked by authorities trying to locate him. His wife went to stay with her sister.
·The applicant was subjected to serious torture in Sri Lanka. He finds it difficult to trust authorities and was fearful to fully disclose his claims upon arrival in Australia.
The applicant was interviewed by a delegate of the Minister on 17 and 23 August 2017. An audio recording of the interviews was provided to the Tribunal.
The delegate accepted that the applicant had been involved with the LTTE for two distinct periods. The first was coerced involvement as a minor and ended at the time the Indian Peace Keeping Force (IPKF) was on the Jaffna Peninsula (between 1987 to 1990). The second was a voluntary role as a medic at [a named battle (Year 9)]. He later worked as an assistant at a [Facility 1]. The delegate was not convinced of how the applicant’s involvement with the LTTE ended, however accepted that he was no longer in contact with them by the time he first left for [Country 1] in 1999.
The delegate accepted that the applicant was detained and tortured by the IPKF in [Year 10]. However, they did not accept that [Mr A] was arrested, detained and tortured in [Year 14] or that the applicant was detained in 2011, noting inconsistencies in the evidence about how the applicant escaped custody.
Ultimately, the delegate found that the applicant would no longer be at risk of harm in the reasonably foreseeable future if returned to Sr Lanka.
Application for merits review
The applicant applied for merits review of the delegate’s decision on 3 November 2017.
On 26 May 2022, the Tribunal received submissions from the applicant’s representative and a signed statement made by the applicant using a Translating and Interpreting Service (TIS) interpreter on 26 May 2022. The submissions outlined that the applicant fears he would be subjected to serious harm upon return to Sri Lanka on the basis of his Tamil race, imputed political opinion and as a returnee from the West and failed asylum seeker.
The representative’s legal submissions dated 24 May 2022 provided the following information in contrast to the findings of the delegate:
·It was maintained that the applicant’s cousin was a high profile LTTE member, who was arrested by the Sri Lankan authorities in [Year 14]. He had not been heard from since. The applicant was interrogated on the day of the arrest and was later released. He was harassed, questioned and threatened by the Sri Lankan authorities.
·The applicant was forcibly recruited to the LTTE on two occasions: once in [Year 2] until he was arrested by the IPKF in [Year 3], and again in [Year 8] until the applicant fled to [Country 1] in 1999.
·In 2011 the applicant was blindfolded and abducted by the CID, severely tortured, beaten and sexually assaulted. He managed to escape and decided to flee to Australia with the assistance of a smuggler.
In addition to evidence and claims previously outlined, the submissions indicate that the applicant’s family in Sri Lanka has faced ongoing issues with the authorities, who are attempting to obtain information about the applicant. He would be at a real risk of severe harm due to his profile, given his ongoing work for the LTTE, previous encounters with the Sri Lankan authorities and harassment and torture he had to endure. This would be exacerbated by his profile as a returnee from the West and failed asylum seeker, along with his involvement in the Tamil diaspora. According to the submissions, the applicant would be unable to access protection from the local authorities due to his Tamil ethnicity.
A significant amount of third-party information was cited in the submissions in support of the applicant’s claims.[1]
[1] Human Rights Watch: World Report 2020 - Sri Lanka, 14 January 2020, accessed at Department of Foreign Affairs and Trade, Country Information Report on Sri Lanka, 23 December 2021; United Nations Human Rights Office of the High Commissioner (OHCHR), Sri Lanka: UN experts call for swift suspension of Prevention of Terrorism Act and reform of counter-terrorism law, 02 March 2022; Amnesty International, The State of the World's Human Rights; Sri Lanka 2021, 29 March 2022, accessed at Human Rights Watch, “In a Legal Black Hole” Sri Lanka’s Failure to Reform the Prevention of Terrorism Act, 7 February 2022 US Department of State, 2021 Country Report on Human Rights Practices: Sri Lanka, 12 April 2022, Carnegie Endowment for International Peace, Polarization and the Pandemic, 28 April 2020; Human Rights Watch, Sri Lanka: Un Report describes alarming rights situation,3 March 2022, The Guardian, ‘It’s a very worrying time’: Sri Lanka’s recovery interrupted by coronavirus, 12 April 2020; US Department of State, 2019 Country Report of Human Rights Practices: Sri Lanka, 11 March 2020; Annual Report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary General, Promoting Reconciliation, accountability and human rights in Sri Lanka, 25 February 2022; Human Rights Watch, Sri Lanka Human Rights under attack, 29 July 2020; United States Department of State, Annual Report 20178, 20 April 2018; Tamil Guardian, ‘Tamils fear prison and torture in Sri Lanka, 13 years after civil war ended’, 28 March 2022; Human rights groups demand suspension of reports on Sri Lanka to assess refugee applications following rejection by a UK Court, Media Release, 3 June 2021, Australian Centre for International, Upper Tribunal (Immigration and Asylum Chamber) Appeal Number PA/09978/2016/PA/13288 issued on 27 May 2021; Tamil Guardian, ‘How a landmark British ruling may save Tamil activists from deportation to Sri Lanka’, 5 June 2021, accessed at Australian Government, Smart Traveller Advice accessed at
The applicant’s statement, dated 26 May 2022, requested that the Tribunal continue to accept the facts that were accepted by the delegate at the primary level. In relation to the claims that were not accepted, the applicant said that during his interview with the delegate he was very stressed and struggled to remember details relating to his cousin’s arrest, noting that many years had lapsed since the event. The applicant confirmed that his cousin was arrested by the CID, and that this occurred in the month of December rather than June.
The applicant appeared before the Tribunal on 31 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant’s evidence at the hearing will be discussed below where relevant.
At the date of the hearing, the applicant’s mother was living in [Village 1] with his youngest [sibling]. The applicant’s two other [siblings] permanently reside in [Country 4] and [Country 5]. The applicant is married with [children]. His wife and children were also living in [Village 1], close to his mother.
The applicant said that his family were displaced at the time he left Sri Lanka. They were originally in [Town] but lived in a variety of locations before they returned to their home in [Village 1] approximately two years before the date of the hearing.
Whilst living in [Country 1] Arabia from 1999 until 2005, the applicant worked maintaining a [Facility 2]. He described the [Facility 2] as a [Description]. Other than [Country 1] and Australia, he once travelled to [Country 2] for the wedding of his younger [sibling]. The applicant could not remember the date, but thought it was in [Year 12].
While the applicant worked in [Country 1], he said that he travelled back into Sri Lanka twice during the cease fire (which commenced in 2002). On one of those occasions, he returned to attend his father’s funeral.
The applicant expressed concern that if he returned to Sr Lanka, he would be detained on arrival at the airport and would be held for an indefinite period.
The applicant claimed that his brother was captured [in Year 14] and had been missing since that time. The applicant later clarified that he was referring to a cousin on his father’s side, noting that the term ‘cousin brother’ can be interpreted in various ways from Tamil to English. For the sake of consistency, I will refer to the relative as ‘cousin’.
The applicant explained that his cousin was trying to escape Sri Lanka with his family when they were captured by the Sri Lankan Navy at sea. They were taken to a detention centre that the applicant thought was in Trinconmalee. The family was released when their uncle signed for them. After the applicant’s cousin was released, he came to stay in the applicant’s house. The CID came to the house and took the applicant’s cousin. The family were not taken. The applicant said that he went to the police and informed them, but he got nothing in response.
I asked the applicant why he went to the police if his cousin was taken by the CID. The applicant explained that the CID is higher ranking; it investigates terrorism. He went to the local police station to report that CID took his cousin but the police said they could not do anything.
When the applicant returned to live in Sri Lanka in 2005 he worked for a [Country 3] organisation undertaking [Specified] work as [an Occupation]. [Description of organisation’s work and applicant’s task deleted.]
At the time the applicant returned to Sri Lanka from [Country 1], there were peace talks and travel restrictions were removed. The applicant felt optimistic about the future in Sri Lanka at that time.
The applicant provided limited information about his involvement with the Sri Lankan diaspora.
In relation to his health, the applicant gave evidence that he had been visiting [Dr B] for the last two years. He suffers back pain due to a weakness in a disk. [Dr B] referred the applicant to physiotherapy. The applicant said that he originally attended four sessions a month, which had decreased to once or twice per month by the date of the hearing. The applicant said he wore a special belt to support his back. He was not sure how the injury was caused.
The applicant gave evidence that his doctor had told him several times to seek treatment for post-traumatic stress. However, the applicant had not done so. He said he preferred not to talk about it.
Following the hearing, the applicant supplied a psychological assessment report by Psychologist [Mr C] of [Organisation], dated 28 June 2022. [Mr C] holds a Bachelor of Arts (Psych), a Diploma of General Studies (Psych) and a Masters of Rehabilitation Counselling. The applicant participated in two interviews to aid with the preparation of the report. [Mr C] provided an overview of the applicant’s past trauma, as reported to him by the applicant. The Beck Depression Inventory was administered to identify the servery of the applicant’s depression levels. The applicant scored a total of 50, which indicated extreme depression. The applicant’s symptoms were reported as including:
·Recurrent, involuntary and intrusive memories of traumatic events
·Intense or prolonged psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event
·Use of alcohol to avoid distressing memories, thoughts and feelings
·Feelings of detachment or estrangement from others
·Exaggerated startle response
·Sleeping difficulties.
The report recommended that the applicant participate in further testing and assessment to develop a treatment plan.
The abovementioned psychological assessment report was accompanied by the representative’s post-hearing legal submissions, dated 28 June 2022. The submissions address concerns raised during the hearing relating to the applicant’s credibility, outlining that, as indicated in the provided the report, the applicant suffered trauma which may impact his ability to recollect or describe traumatic events. The representative submitted that the applicant should be found to be a credible witness.
The psychological assessment report was cited in conjunction with information available in the DFAT Report for Sri Lanka. The representative submitted that the applicant would be unable to access mental health support and appropriate medical care, which would impact his ability to subsist, resulting in significant harm. Recent media articles were cited to further address the current health care system situation in Sri Lanka and the applicant’s likely ability to obtain mental health support.[2]
[2] Sri Lanka suspends fuel sales for two weeks as economic crisis worsens, The Guardian, 28 June 2022, Avani Dias and Som Pitadar, ‘Sri Lanka’s economic crisis has turned into a national emergency, and its people are now calling for help to save lives’, ABC News, 19 June 2022, FOR A PROTECTION VISA
At the time the applicant arrived in Australia, individuals that entered the country without a valid visa or were not immigration cleared on arrival could not apply for a permanent Protection visa (subclass 866). The applicant in the current matter applied for a Safe Haven Enterprise visa (subclass 790).

In order to be granted a subclass 790 visa, the applicant must be a refugee or satisfy Australia’s complementary protection criteria as defined by the Act.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
EVALUATION AND FINDINGS
While I acknowledge that there were some discrepancies in the applicant’s evidence through the application and review process, I found the applicant’s claims and overall narrative to be generally consistent. The applicant responded to questions naturally and spontaneously through the Tribunal hearing and was visibly distressed when discussing the prospect of returning to Sri Lanka.
I accept the applicant’s account of his experiences during the Sri Lankan civil war. In making this assessment, I have considered his written and oral evidence through the application and review process and independent reports about the socio-political situation in Sri Lanka throughout that period. Specifically, I accept that he was forcibly recruited to the LTTE on two occasions and fulfilled a variety of roles, including providing labour, administrative assistance and as a medic. At the Tribunal hearing, the applicant gave evidence that he was injured when a C plane dropped a bomb over the area where he was digging trenches in [Year 1] or [2] and I accept this to be true. I also accept that he was detained by the IPKF for 15 days in [Year 3], during which time he was tortured.
I accept that the applicant’s cousin was arrested in [Year 14] and has not been heard from since. Unfortunately, it is well documented that many Tamil people disappeared in Sri Lanka around this time.
During the Tribunal hearing, the applicant elaborated on his experience when he was detained by the CID in 2011. He told me that his captors placed termites in his eyes and belly button. He was raped with a foreign object and hit on the head until it bled. I accept that the applicant did not previously feel comfortable discussing his experience.
I further accept that the applicant now suffers from mental and physical health issues. He experiences back pain that requires physiotherapy and mental health issues that have gone undiagnosed and untreated. Although the applicant had not sought treatment for his mental health prior to the Tribunal hearing, I accept that his general practitioner recommended that he seek treatment for post-traumatic stress disorder and a psychologist recommended that he pursue a diagnosis and treatment. Of note, at the time of the psychological assessment, the applicant was demonstrating significant symptoms of depression.
The security situation in Sri Lanka is reported to have greatly improved since the end of the civil war in May 2009. This necessarily impacts on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision, even if it may have been well-founded at earlier parts of the process. In assessing the applicant’s claims to fear harm in Sri Lanka, I need to consider the risk of harm to the applicant in the reasonably foreseeable future. This assessment is a forward-looking test.
While the security situation has greatly improved for Tamils as a whole, the applicant’s experiences in Sri Lanka during the war, along with his current state of health, indicate an increased risk of harm to the applicant if he is returned to Sri Lanka.
The LTTE no longer exists as an organised force, and only a few incidents involving former LTTE members have been recorded since the end of the war.[3] Nevertheless, former LTTE members may be monitored. Sources suggest that the extent of monitoring typically depends on an individual’s seniority within the LTTE, and ongoing involvements with politically sensitive issues.
[3] E.g. 'Ex-LTTE cadre, wife and sister arrested with fire arms, explosives', Colombo Page, 13 October 2019; 'An Accidental Bomb Blast Identified an Active LTTE Intelligent Agent', Asian Tribune, 07 July 2020; 'Tamil family arrested by Sri Lankan police', Tamil Guardian, 08 December 2020; 'Sri Lankan intelligence arrest two Tamils for allegedly manufacturing firearms', Tamil Guardian, 22 October 2020; 'Former LTTE cadre arrested in Batticaloa for 'reviving' the organisation', Tamil Guardian, 02 June 2021.
‘High-profile’ former LTTE members are individuals who held senior positions in the LTTE’s military wing and civilian administration. Others considered ‘high-profile’ include individuals suspected of terrorist or serious criminal offences during the war, or of providing weapons or explosives to the LTTE.
‘Low-profile’ former LTTE members include former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war. DFAT assesses that, although the great majority of low-profile former LTTE members have been released following their rehabilitation, any low-profile former LTTE members who came to the attention of the Sri Lankan authorities now, particularly if suspected of having a combat function during the war, would likely be detained and may be sent for rehabilitation. Following their release from rehabilitation, a low-profile former LTTE member might be monitored but would generally not be prosecuted’.
At the time of the independent protection assessment, it was noted that there was nothing to identify the applicant as a returned failed asylum seeker. However, it is unlikely that this would still be the case given the length of the applicant’s time away from Sri Lanka and the method of return.
DFAT reports that Sri Lankan returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service and the CID. These agencies check travel documents and identity information against immigration databases, intelligence databases and the records of outstanding criminal matters and this process may take several hours. I accept that the applicant is not in possession of a valid passport and he would require a temporary travel document to return to Sri Lanka. For returnees travelling on a temporary travel document DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting their home area and town police and contacting neighbours and family and checking criminal and court records[4]. I accept that routine enquiries may well identity him as a former LTTE member, or a person suspected of being a former combatant.
[4] DFAT 2017 Country Information Report for Sri Lanka 24 January
Although the applicant did not hold a senior role within the LTTE, he was involved for a lengthy period and worked on the front-line during combat. Furthermore, he has not been sent for rehabilitation to date. It may be that considered individually, none of these matters clearly indicate the applicant will be of adverse interest to the Sri Lankan authorities if he is returned to Sri Lanka given the significant changes to the political and security situation that have occurred since he left that country. However, considered cumulatively, I cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE. In the circumstances, I cannot discount the possibility that the application would be detained or that the treatment in detention would amount to serious harm. The applicant’s psychological condition would put him at a greater risk of harm during even a brief detention.
It follows that there is a real chance the applicant will face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future, for the essential and significant reasons of his ethnicity and his political opinion.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, I find that state protection will not be available to the applicant and the real chance of persecution relates to all areas of Sri Lanka.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Sheridan Lee
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.
…

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1727101 (Refugee) [2023] AATA 1033

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[2023] AATA 1033

20 January 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction