1727903 (Refugee)

1727903 (Refugee) [2023] AATA 2099 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Valarmathie Murukaverl (MARN: 1572923)
CASE NUMBER:  1727903
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Sheridan Lee
DATE:6 April 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 6 April 2023 at 12:50 pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – young Tamil man – father went missing in 2007 – son of a disappeared person – not in possession of a valid passport – imputed political opinion – anti-regime or supportive of the LTTE – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46A, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 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 man from Sri Lanka of Tamil ethnicity and Hindu religion. He was born in [Location 1], Batticaloa, in the Eastern Province, and continued to live there until 1998. The applicant left school early and went to work with his father. He learned to be a [Occupation 1] in Vavuniya, in the Northern Province of Sri Lanka from 1998 to 2004. He then went to Colombo to work as a [Occupation 1] from 2005 until 2009.
The applicant first arrived in Australian waters by boat [in] March 2010. He applied for a Subclass 866 Protection visa, which was refused by a delegate of the Minister on 14 February 2011. Independent merits review of the decision was commenced and on 31 March 2012, the application was remitted to the Department with a direction that the applicant satisfied s36(2) of the Act.
The applicant arrived on Christmas Island as an Unauthorised Maritime Arrival (UMA). Under s 46A(1) of the Act, an UMA cannot make a valid visa application in Australia. However, the applicant made a submission to the Minister under s 46A(2) of the Act and on 29 September 2015, the bar on making a valid visa application was lifted.
A valid application for a Safe Haven Enterprise, Subclass 790 visa, was made on 29 September 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 was interviewed by Departmental officials on Christmas Island, with the assistance of an interpreter on 2 April 2010. During the interview, the applicant outlined that he left Sri Lanka in fear of his life. The applicant alleged that:
·He departed Sri Lanka by airplane from Colombo airport to [Country 1] using an official passport. He then travelled legally to [Country 2].
·He travelled to Australia from [Country 2] using a false passport with the assistance of people smugglers.
·His father assisted the LTTE by supplying spare parts for vehicles. The LTTE had requested that one of his children join the movement, but he refused and assisted in their place. As a result, he was taken in 2007 for interrogation and never returned.
·He and his brother returned to their village in 2009 for a temple festival. A person called [Mr A], in charge of the [Location 2] office of the Karuna group, came and asked them a range of questions about their father and where they were working. [Mr A] asked the brothers to attend the office that evening. When they spoke to their mother, she was worried and recommended that they return to their uncle in Colombo.
·The Karuna group had a camp in the applicant’s village. The Army and Special Task Force (STF) were also present. The applicant was not personally involved. He never participated in any fighting during the civil war and he never received training in preparation for conflict.
·Their father’s brother, [Mr B], lived in Colombo. The applicant stayed with him for some time.
·He was questioned by the police several times while he was staying in Colombo and Batticaloa. He was also checked by the STF and required to register as a worker in Batticaloa in 2006.
·He has never been involved in politics. However, when Minister [named] died he was a pallbearer at the funeral.
·He was a member of the Hindu Youth Association in his village and the [named] Sports Club.
The applicant supplied the Department with a letter of support from [Reverend Father C] of [specified Parish Community]. The handwritten date is unclear. [Father C] wrote:
I wish to state that [the applicant] of [address] is known to me and he comes from an honest and law abiding family. He is trustworthy and a hard working person.
I come to know that he has to live in hiding to safeguard his own life. Though the problem of the country seems to be over, there are few people who are endangered by few elements or groups yet and [the applicant] is one among the few who face such threat.
The Departmental file contained some news articles that appear to be from a newspaper published on 21 March 2010, however they were not translated. There was also an article published on TamilNet on 5 May 2010 titled ‘Armed men keep six girls in unconscious state in Batticaloa’. The article reports that a schoolgirl was abducted by unidentified assailants and kept captive until she escaped. During her captivity, she observed six other students that were detained and unconscious.
On 29 May 2010, the applicant prepared a statutory declaration with the assistance of an interpreter in the English and Tamil languages. The statement outlined that:
·The applicant’s parents sent him to Vavuniya in 1998 when he was [age], abandoning his schooling, because they feared he would be taken by the LTTE.
·The LTTE attended the applicant’s house in about 2006 or 2007 and demanded that the household send a family member to help the cause. The applicant’s father saved the applicant from going with the LTTE by offering to send them supplies from Colombo. The applicant was in Colombo at that time.
·His father sent supplies to the LTTE such as clothing and motorcycle parts for about 6 to 7 months. In April 2007, the applicant, his mother and siblings were in the [named] Camp. His father came to visit them at the camp. While he was visiting, he was taken by the Karuna group and the Criminal Investigation Department (CID) and had not been seen since.
·In October 2009, the applicant returned to his village for a religious ceremony. He was approached by 4 men on 2 motorbikes. They called out and asked if he was [Mr C]’s son. The applicant knew they were from the Karuna group because they were dressed in civilian clothing and armed.
·The men on the bikes told the applicant to go with them to their office in [Location 2]. They threatened the applicant by telling him that what happened to his father would happen to him if he did not attend. They also said they would use their contacts within CID to locate him if he returned to Colombo.
·The applicant refused and the men did not force him to go with them because there were a number of villagers around.
·The applicant went to stay with his uncle, [Mr B], in Colombo. His uncle then sent the applicant to his friend’s house in a Singhalese area called [City 3], about [number] miles from Colombo.
·The applicant’s uncle reported that the CID visited the shop where he worked in [address]. After that incident, he made arrangements for the applicant to fly out of Sri Lanka. The applicant was frightened by the Karuna group and CID after his father went missing in 2007.
·The applicant tried to live in [Country 2] for a while. He then met a smuggler named [Mr D] who took him to [Country 3] and then he travelled by boat to Australia.
·Prior to the incident in 2009, the applicant had little trouble because he was working in Colombo. All he was required to do was report weekly to the local army station in [Location 3], Colombo.
·On the date of the statement, the applicant’s mother and sister lived in [Location 1], Batticaloa. He believed that his brother was in [Country 2], but he was unsure of his brother’s travel plans.
·Since arriving in Australia, the applicant had been informed by his mother that the Karuna group had visited the home 2 or 3 times to inquire about his whereabouts. They also asked about his younger brother.
·The applicant fears returning to Sri Lanka on the basis that he would be harmed by the Karuna group and the CID.
The applicant attended an interview with the assessment officer on 1 June 2010. The Tribunal did not receive a recording of the refugee status assessment interview. However, an overview of the applicant’s evidence was provided in the decision record.
On 14 February 2011, it was determined that the applicant was not a person to whom Australia had protection obligations. In particular, the delegate found that the applicant’s profile as a Tamil Hindu man was not sufficient of itself to make him of adverse interest to Sri Lankan authorities. The applicant claimed that his issues with the Karuna group and CID commenced in 2009 when he visited his home village. The delegate highlighted some inconsistencies in the applicant’s description of the alleged event in 2009 during his evidence at the entry interview and his separate interview with the delegate during the refugee assessment. It was noted that the applicant had originally referenced an individual named [Mr A] when he spoke about the incident. However, during his interview for the refugee assessment, that individual was not mentioned. The applicant also made no mention of his brother when describing the incident during the refugee assessment interview.
The delegate felt that it was implausible that the applicant was of adverse interest to the Karuna group, yet they did not compel him to attend their office in 2009. She noted the inconsistency between the applicant’s claim that the Karuna group act with impunity, yet they did not forcibly detain him in front of witnesses from the village. The delegate felt that the Karuna group could have located the applicant in Colombo at any time since his father’s disappearance in 2007 if they had contacts in the CID, if they had been inclined to do so.
The applicant applied for independent merits review of the refugee status assessment.
On 31 March 2012, the independent reviewer found that the applicant was a person to whom Australia has protection obligations. It appears that no statement of reasons was issued with the decision notification. At the Tribunal hearing, when I asked the applicant if he received a statement of reasons he was unsure.
On 29 September 2015, the applicant applied for a Safe Haven Enterprise, Subclass 790 visa, after the Minister issued a written notice allowing him to make a valid application under section 46A of the Act.[1]
[1] Section 46A(1) of the Act restricts unauthorised maritime arrivals from making a valid visa application. The Minister can issue a written notice that s46A(1) does not apply if they believe it is in the public interest to do so.
On 29 May 2017, the applicant was interviewed by a Departmental officer via telephone with the assistance of an interpreter in the Tamil and English languages. A recording of the interview was provided to the Tribunal. During the interview, the applicant restated his claims. He also advised the interviewer that since his arrival in Australia, members of the Karuna group had visited his family home on two or three occasions to ask about the whereabouts of the applicant and his brother.
On 4 June 2017, the applicant’s representative made post-interview submissions. In addition to the evidence previously outlined, the submissions noted that the applicant’s younger brother was seeking protection in [Country 4].
The submissions confirmed that both the applicant and his brother were approached by members of the Karuna group in 2009 and requested to attend the office in [Location 2]. It was alleged that the members of the Karuna group may have feared for their safety amongst a large group of people if they had attempted to forcibly detain the applicant and his brother.
In respect to the passage of time between the disappearance of the applicant’s father and the approach by the Karuna group, it was contended that the Karuna group would not have originally known the identity of [Mr C]’s sons. It was outlined that between 2007 and 2009 the CID and Karuna group had taken people who worked with the applicant’s father. It was hypothesised that one of those people divulged the identity of the applicant and his brother. It as further alleged that it would have been easy to identify the applicant in his village.
The submissions claim that since he departed Sri Lanka, the Karuna group wrote to the applicant’s mother requesting the children of [Mr C] to attend their office. A copy of the letter was provided.
Finally, the submissions provided an update on the socio-political situation in Sri Lanka in 2017. Annexed to the submissions were translated copies of several news articles published online:
·An article published on on 15 August 2016 titled ‘New white van kidnappings and murder threats continued by the new Sri Lankan Government’. The article provides an overview of several suspected kidnapping of people who were formerly involved with the LTTE by Sri Lankan authorities. It also provides examples of parents and partners who have been questioned about the involvement of their family members.
·An article published on eelamurasu.com.au on 10 May 2017 titled ‘A Tamil person who went to Sri Lanka from Australia abducted in white van’. The article reports that a Tamil man travelled to Sri Lanka after living in Australia for some time. The man claimed to have been abducted and assaulted while he was in Sri Lanka. He was released when his family paid a ransom.
·An article published on on 27 January 2017 tilted ‘Torture that continues in Sri Lanka United Nations requests not to deport’. The article outlines that human rights abuses continued in Sri Lanka and the United Nations had requested other countries not to deport Tamils who may be at risk.
·An article published on athavansrilanka.com on 4 October 2016 titled ‘C. Vigneswaran – Chief Minister, Northern Provincial Chief Minister has warned not to send back to motherland’.
·An article published in the 10 to 16 May issue of the Malaimurasu Tamil Newspaper titled ‘The rounding up of Veruhal has aroused suspicions’. The article reports that a search in many villages of the Veruhal Secretariat carried out by the navy, as a result of naval soldiers being attacked by some men who left behind a T56 gun, was being considered suspicious due to contradicting versions of events being released by military forces to different media sources.
·An article published on dated 6 January 2016 titled ‘It is risky for people to visit Sri Lanka who maintained contacts with Tigers’. The article conveys that, according to an International Truth & Justice Project report, those who had maintained direct or indirect contacts with the LTTE were urged to avoid visiting Sri Lanka as they could be subjected to smuggling of people in white vans, torture and sexual atrocities perpetrated by government forces.
·An article published on dated 21 October 2016 titled ‘Sinhala Police, gunning down Tamil students in Jaffna, is not different from genocidal military’. The article reports that two University of Jaffna students were shot dead by Sinhala Police a few kilometres north of Jaffna city.
·An article published by Daily Mirror (Sri Lanka) dated 14 March 2017 titled ‘SL forces continuing to operate with impunity: Sooka’. The article outlines that human rights lawyer Yasmin Sooka alleged that Sri Lanka’s security forces were still continuing to operate with impunity after the change of government, and argues that the Sirisena government was complicit in ongoing violations and abuses due to lack of investigations.
·An article published by Colombo Telegraph dated 20 May 2017 titled ‘Right to mourn is universal; stop intimidating Tamils - Sooka tells government’. The article reports that Yasmin Sooka, Executive Director of International Truth & Justice Project, urged the Sri Lankan police to refrain from threatening Tamil activists and their families, following a ban on commemorating Tamils who died in the civil war due to the possibility of them being former LTTE cadres.
On 31 October 2017, the application for a Safe Haven Enterprise, Subclass 790 visa, was refused by a delegate of the Minister.
The delegate noted that if the applicant and his brother were of adverse interest to the Karuna group, the applicant’s mother and sister would also have been of interest due to the familial relationship to the applicant’s father. Further, there was no evidence that the applicant’s uncle was detained or questioned. He was identified by the applicant to be his father’s younger brother and still lived and worked in Colombo on the date of the interview.
The delegate highlighted that the applicant gave evidence that he was registered in Colombo as a Tamil who was working and living in the area. It was noted that the authorities were aware of his identity and location between 2007 and 2009. Further, the applicant departed Sri Lanka via the airport on an official passport.
The delegate outlined that it was likely that the applicant’s brother had returned to Sri Lanka for a period after the applicant had departed. This was not indicative behaviour of someone at risk. There was no evidence submitted to suggest that the applicant’s brother had been found to be owed protection by [Country 4], only that he had applied.
While the post-hearing submissions alleged that the applicant had suffered ‘significant physical harassment’ and ‘significant physical ill treatment’ from ‘the authorities’ prior to his departure from Sri Lanka, this was not supported by his own evidence and it was not accepted by the delegate. Finally, the delegate outlined that the Karuna group no longer operates as a paramilitary organisation.
Ultimately, the delegate did not accept that the applicant’s ethnicity, religion or imputed-political opinion would place him at risk of serious or significant harm.
Application for merits review
On 12 November 2017, the applicant applied to the Tribunal for merits review of the decision to refuse his application for a Subclass 790 visa. A copy of the delegate’s decision and reasons was provided to the Tribunal with the application for review.
The applicant provided an updated statement of claims to the Tribunal on 29 March 2022. The statement confirmed that the applicant had no new claims and that all information given to the Department was true and correct.
The applicant advised that in 2019 he was married to [Ms E] in Australia. [Ms E] is also a Sri Lankan citizen seeking asylum in Australia. A copy of the certificate of marriage, issued by the Victorian Registrar of Births, Deaths and Marriages was supplied to the Tribunal.

At the date of the statement, the applicant’s brother was residing in [Country 4]. There was no update on whether he had been granted asylum.
In response to the delegate’s comments regarding the safety of the applicant’s mother and sister, he said that they ‘managed to live as they are women and the Karuna group knew they had no LTTE association…. The Karuna group were after the men of the family due to our work.’
The applicant expressed a fear of being punished under the Prevention of Terrorism Act as a suspected LTTE member. He said his fear worsened when he heard of the arrest of the Mayor of the Jaffna Municipal Council, Mannivannan Visvalingam.[2] The applicant highlighted the poor human rights record of the Rajapaksa Government.
[2] Srinivasan, M, 9 April 2021, ‘Jaffna Mayor arrested for ‘promoting LTTE ideology’’, The Hindu, accessed at Jayatilleka, D, 9 April 2021, ‘’No Myanmar in Sri Lanka!’: the arrest of the Mayor of Jaffna is a marker event’, Colombo Telegraph, accessed at >
The applicant was originally invited to participate in a hearing before the Tribunal to take place on 5 April 2022. However, the Member who was scheduled to hear the matter departed the Tribunal and that hearing date had to be vacated. The matter was subsequently reallocated to me.
The applicant appeared before the Tribunal to give evidence and present arguments on 28 February 2023. The 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.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, 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.
ANALYSIS 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 and supported by independent reports about the conditions in Sri Lanka at the end of the civil war. The applicant responded to questions naturally and spontaneously through the Tribunal hearing and was visibly distressed when discussing the prospect of returning to Sri Lanka. The applicant was able to confidently explain many of the discrepancies highlighted in the decision of the delegate.
I accept that the applicant is a Tamil Hindu man. I accept that he departed Sri Lanka in 2009 using his official passport and later travelled to Australia through the services of a people smuggler, without his passport. The applicant’s mother and sister continued to live in Batticaloa on the date of the Tribunal hearing. His sister suffers from a physical disability and is cared for by the applicant’s mother.
I accept that the applicant’s father went missing in Sri Lanka in 2007 and has not been heard from since. Unfortunately, unexplained disappearances were common during the Sri Lankan civil war and many Tamil men were taken into custody and never seen again.[3]
[3] See, eg, ‘Sri Lanka civil war: Rajapaksa says thousands missing are dead,’ BBC News, 20 January 2020, accessed at >
At the hearing, I asked the applicant if his brother had returned to Sri Lanka, as hypothesised by the delegate. The applicant gave evidence that his brother also departed Sri Lanka in 2009 and had not returned. The delegate did not outline what evidence was relied upon to make a finding that the applicant’s brother had returned to Sri Lanka. There was no evidence in support of that finding contained on the Departmental file. On the available evidence, I am not satisfied that the applicant’s brother returned to Sri Lanka since departing in 2009.
I accept that the applicant and his brother were approached by armed militia when he returned home in 2009. I further accept that this motivated the brothers to flee Sri Lanka in fear of their life. The Karuna group were active in northern Sri Lanka at that time and it is plausible that the applicant was of interest to them as the son of a disappeared person. While the Karuna group may not have pursued the applicant to Colombo, I accept that the encounter occurred, even if opportunistic.
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, the disappearance of his father, his departure from Sri Lanka relatively close to the end of the war and his lengthy period outside the country indicate an increased risk of harm to the applicant if he is returned to Sri Lanka.
DFAT reports that Sri Lankan returnees are interviewed by Sri Lankan Immigration. Depending on their background, they may also be interviewed by the State Intelligence Service and the CID. Those with a former LTTE connection are likely to be questioned, although sources indicate this would depend on the case. These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. Credible sources state that, as part of this process, police will seek to confirm the identity of returnees travelling on temporary travel documents. I accept that the applicant is not in possession of a valid passport and he would require a temporary travel document to return to Sri Lanka. I accept that routine enquiries may well identify him as the son of a disappeared person and potential LTTE member.
Furthermore, the applicant is a young Tamil man from the East of Sri Lanka, he departed the country relatively close to the end of the civil war and has not been sent for rehabilitation to date. I accept the applicant’s oral evidence that he has attended Heroes’ Day events in both Sydney and Melbourne.
In September 2022, the United Nations’ Office of the High Commissioner for Human Rights (OHCHR) said it continues to receive reports of surveillance, intimidation, and harassment of various groups in the north and east, including journalists, human rights defenders, families of the disappeared and persons involved in memorialization initiatives. Families of the disappeared face surveillance, questioning, intimidation and unannounced visits by intelligence and police officers, especially when they are actively involved in protests or memorialization.[4]
[4] 'Situation of human rights in Sri Lanka: Comprehensive Report of the United Nations High Commissioner for Human Rights A/HRC/51/5', United Nations Human Rights Council, 6 September 2022.
It may be that considered individually, none of these matters clearly indicate the applicant will be of adverse interest to the Sri Lankan authorities if he is returned to Sri Lanka given the significant changes to the political and security situation that have occurred since he left that country. However, considered cumulatively, I cannot discount as remote that they would result in the applicant being imputed with a political opinion which is anti-regime or supportive of the LTTE. In the circumstances, I cannot discount the possibility that the applicant would be detained or that the treatment in detention would amount to serious harm.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, I find that state protection will not be available to the applicant and the real chance of persecution relates to all areas of Sri Lanka.
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.
…

[2023] AATA 2099

6 April 2023

Key Legal Topics

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Immigration

Statutory Interpretation

Administrative Law

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Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction