1729283 (Refugee) - [2019] AATA 6219

1729283 (Refugee) [2019] AATA 6219 (11 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729283
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Antoinette Younes
DATE:11 July 2019
PLACE OF DECISION:  Sydney
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 11 July 2019 at 10:34am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – political opinion – United National Party (UNP) member – particular social group – family members of influential members of UNP – pro-democracy grass roots political activists – victim of harassment and threats – fear of harm from government agencies and UNP faction – future risk of harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
A v MIMA [1999] FCA 116
A99 of 2003 v MIMIA [2004] FCA 773
Koe v MIMA (1997) 74 FCR 508
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMA v Thiyagarajah (1998) 80 FCR 543
MZRAJ v MIMIA [2004] FCA 1261
NASJ v MIMIA [2005] FMCA 124
Osman v United Kingdom (1998) 29 EHRR 245
Prathapan v MIMA (1998) 47 ALD 41
S1573 of 2003 v MIMIA [2005] FMCA 47
SZBBE v MIMIA [2004] FMCA 753
SZBBE v MIMIA [2005] FCA 264
SZCAL v MIAC [2008] FMCA 330
SZGHC v MIAC [2007] FMCA 570
SZOET v MIAC [2010] FMCA 483
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 Citizenship to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 21 January 2013 and the delegate refused to grant the visa on 28 August 2013.
This matter was before the Tribunal (differently constituted) previously and [in] November 2017, the Federal Circuit Court remitted the matter back to the Tribunal to be determined in accordance with the law.
The applicant appeared before the Tribunal on 22 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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
The applicant’s claims
In the application for a protection visa, the applicant indicated that he is a Sri Lankan national. He is [number] years of age and he is of Sinhalese ethnicity. In relation to his religion, the applicant stated that he was Buddhist/Christian. He came to Australia as a visitor in October 2012 on a Sri Lankan passport.
The applicant made the following claims:
i)   He left Sri Lanka and came to Australia to visit his sister but with the intention to seek protection.
ii)     In the last several years in Sri Lanka, he experienced ongoing harassment by the security services due to the family’s background. In [year], his late mother travelled to Australia and sought protection which was granted in [year].
iii)   The harassment he experienced was due to his family’s political involvement in Sri Lanka and membership of the United National Party (UNP). The ruling party in Sri Lanka has a culture of intimidating and harassing any active member of the opposition.
iv)   In February 2012 whilst walking in his street, he was approached by three men who assaulted and abused him. They said they were from the secret police and they warned him that he should stop his involvement in politics otherwise he would be “dead like many have in Colombo”. Since that time, he became scared and he suspected that his movements were being watched.
v)    He fears that if he were to return to Sri Lanka, he might be secretly killed through kidnapping and disappearance. He fears that one day, they might also arrest him and torture him believing that he has political information which they could use against the opposition.
vi)   He fears that he would be harmed and mistreated by the state intelligence service, the military intelligence, the local police, and “political thugs in the pay of corrupt politicians”. They would cause him harm because of his active membership of the UNP and as a vendetta against his family with the history of political activism. The Sri Lankan authorities are not in the business of protecting any opposition. The Sri Lankan authorities intimidate, harass and eliminate those who oppose them. The regime uses all tactics to ensure that it stays in power.
In a letter dated 14 February 2013, the applicant’s representative referred to errors made in forms 80 and 866 and corrections were made. The Tribunal observes that the errors mostly related to the whereabouts of members of the family.
In support of the application for protection visa, the applicant provided copies of documents including birth certificate, a letter dated [April] 2013 from [Mr A], member of the UNP, stating that he has known the applicant for many years and that the applicant’s father was an active member of the UNP. Mr [A] stated that the applicant had confided in him about ongoing harassments and assault.
Delegate’s decision record
The applicant was interviewed by the Department. In the delegate’s decision record of 28 August 2013, although the delegate accepted that the applicant has a level of political awareness commensurate with someone who has been politically active, the delegate did not accept that the applicant holds a political profile. The delegate referred to documents provided by the applicant in support of his visitor visa application and noted that “my concerns are based on the fact the applicant being able to possess this amount of finances, would not have been able to do so had he been genuinely targeted.”
In support of the application for review, the applicant provided a copy of the delegate’s decision record and other country information relating to Sri Lanka. In submissions dated 16 February 2014, the representative essentially referred to country information about Sri Lanka including political violence and human rights issues. In support of those submissions, the representative provided reports from 2012 and 2013 relating to country information concerning Sri Lanka.
In submissions to the previous Member following the hearing of 20 February 2014, the representative referred to the concerns relating to the applicant’s credibility, as well as the credibility of the applicant’s mother. The representative referred to an attached psychological report dated 16 August 1995 relating to the applicant’s mother supporting the claim that the applicant’s mother was a UNP supporter, presumed to have applied for a protection on the basis of her membership of the UNP. The representative argued that the applicant’s claims are “individual claims and hence it makes no sense why his claims directly and indirectly linked to his late mother’s claims for protection. The mother’s political ideology and party support, have no relevance to him as an individual applicant and hence it would be unfair to use it against him”.[1]
[1] Undated submissions, at page 2.
The Tribunal observes that in the psychologist report of 16 August 1995 relating to the applicant’s mother, amongst other things, history was recorded about her reporting that her ex-husband was involved in the UNP which led to substantial marital conflict between the two.
In submissions dated 28 May 2015, the former representative contended that the delegate had failed to focus on the “real issues” and that Sri Lanka is a regime that persecutes any citizen who is agitating against its rules regardless of whether or not he or she has a high profile. The representative submitted that the applicant’s claims are credible and were acknowledged by the delegate, although it is accepted that the delegate had subsequently relied on issues of credibility”;” the delegate was superficial and dismissive in assessing whether the applicant meets the requirements of complementary protection criterion…[2]”
[2] Submissions dated 7 May 2015, pp1-2.
The Tribunal has noted the submissions relating to the delegate’s decision record but it is the Tribunal’s task to determine the review in consideration of all relevant material.
CURRENT CLAIMS
In a statutory declaration dated 16 May 2019, the applicant referred to his background, including having a “privileged” upbringing. He discussed his previous travels to Australia in June 2008 and February 2010 as the holder of visitor visas, in June 2008 and February 2010. In relation to his protection claims, the applicant noted the following:
i)   His parents were wealthy and owned a large family home on a parcel of land where [number] children were raised. He attended [specified] schools and later completed [qualifications] in about 1978 or 1979. From 1981, he was [an Occupation 1]. He enjoyed [his work] and was able to travel and see many countries including [regions of the world]. Towards the end of 1994, he stopped working as [Occupation 1] and returned to Colombo where he started to work as [Occupation 2]. He [worked] until he left Sri Lanka in October 2012. He saved money as he had very limited expenses at the time. At the time he lodged the visitor visas for Australia, he was able to show that he had access to funds because he had saved money.
ii)     His father was a member of the UNP since the applicant was a child and he has many childhood memories of his father’s strong support for the party. When they were growing up, his father taught the applicant and his [siblings] politics and political ideology and, specifically about the history and context of Sri Lankan politics. As a male child, his father spent a lot of time talking about politics with the applicant and his [sibling]. His father was heavily involved in politics and the applicant became interested as he grew older. He accepted his father’s statements and ideologies as the truth. His father made him understand the importance of the smooth running of government in day-to-day life and the peace of mind and security created in the minds of civil society when the right party governs the country.
iii)   His father supported the UNP and was heavily involved in politics. There were meetings at the house and campaigns for elections on behalf of UNP members and substantial funding for the party and its candidates. They hosted many gatherings and events for the UNP and he recalls that his father was a financial contributor to the UNP. His father never held an active position within the UNP but he was a big supporter and had influence within the UNP because of his financial contributions. His father was a [contractor] and he was well known because of his work with the government. His father operated his business under his name and sometime later, contracts were revoked as a result of his involvement with the government.
iv)   The financial contributions provided by his father to the UNP were used to fund their political activities. As he grew older, he understood that the UNP was bankrupt and relied on wealthy people like his father to support them. His father’s role was essentially to organise party meetings in the home initially at the home in the countryside and later at the home in Colombo when the family relocated from the countryside to the city in about 1970. Both of those properties were used as central meeting locations for the UNP and those events were attended by party supporters and candidates. Meetings were held regularly leading up to elections and during election times. Ultimately his father could pull strings within the UNP because he had money.
v)    As the applicant grew older, he understood that people attending those events were politicians and that his parents hosted those events to raise funds to support political activities of the UNP and to organise political activities. On occasions the guests would stay overnight at the large family home. He was too young at the time to understand what was happening. He learnt that those people were political figures including mayors and ministers.
vi)   Subsequently he and his older siblings became involved in those gatherings and they assisted his mother in preparing refreshments and food for the people who attended the meetings. He recalls that when the family moved from the countryside, they were targeted because of their political beliefs and his father’s affiliations with the UNP. The house that they moved to became known as a house hosting UNP events. The [house] was targeted. The family received abusive and threatening telephone calls.
vii) Later in his life, his father was offered a [government position] but his father declined because he already had power and money in Sri Lanka and there was no need for him to have such a position. His father’s friends were influential members of the UNP and he was active in the party until about 1994/1995, [number] years prior to his death.
viii) His mother was initially a supporter of the UNP but as he grew older and worked as [Occupation 1] between 1981 and 1995, he knew less about his mother and her political involvement. He knew that his mother used to be an organiser for the UNP and she was previously threatened by the Janatha Vimukthi Paramuna Party (JVP) that [targeted] their family home. Around [year], due to the political conflict of his parents, his mother left Sri Lanka and came to Australia and she was granted a family visa, not a protection visa. His mother died in January 2001.
ix)   He became a member of the UNP in 1977 and no fees were paid or membership cards given. He had some UNP documents at his home in Sri Lanka like leaflets that he would distribute but he does not have access to any of the UNP documents as he did not bring them to Australia. He participated with the UNP before he worked as [Occupation 1], when he was home in Sri Lanka during the years he had worked as [Occupation 1] and from when he had returned to Colombo in 1995 until he left in October 2012.
x)    His contribution to the party has been as a member of the party, dropping leaflets to letterboxes, putting up posters for rallies, organising meetings with his father at their home and assisting at the time of the elections including the municipality elections. At one stage, he used to print the booklets about the UNP candidates as one of his friends owned a small printing press. During his active participation with the UNP, he would go to the party office and assist with their activities, including educating supporters of the UNP so that, as members, they were focused on being active and working towards what is best for the country and the people. When he was assisting the UNP, he travelled from house to house with senior organisers to talk to voters and to try to persuade them to vote for the UNP candidates. While they were doing this, they would sometimes be abused because of those activities. He participated in activities which involved him assisting in rallies, meeting with supporters, members, and candidates to prepare where the rallies would be held and to help set up platforms. He picked the leaflets up from the printers and transported them to the party head office. When they were checked and prepared for delivery, he delivered them to main distribution locations and then assisted in leaflet dropping. During some of the campaigns, he did this for about 6 to 7 hours a day and about 2 to 3 days a week. This was particularly the case when his involvement with the UNP became more frequent after [finishing Occupation 1] permanently and living in Colombo.
Submissions dated 17 May 2019

In submissions dated 17 May 2019, the representative provided a summary of the applicant’s personal and immigration history, analysis of the delegate’s decision record and submissions to support the claim that the applicant has a well-founded fear of persecution. In essence, the following points were made:
·The applicant fears harm on the basis of his family’s long-standing personal and political association with the UNP, as well as, his own pro-democracy grassroots political activism.
·The applicant’s father was a prominent businessman who owned and operated business that completed work for [a government] department. The applicant recalls that throughout his childhood, his parents hosted many gatherings and events for the UNP and he recalls that his father was a financial contributor to the UNP which meant that his father had influence within the UNP. The applicant recalls that throughout his childhood, his father taught him more about ideologies and the way in which politics in Sri Lanka should operate. As the applicant grew older, he became more interested in politics and started to assist his father with the gatherings and events when he would return home from [school]. The applicant’s family relocated from the family home in the country to a home in Colombo. Subsequent to the relocation, the family continued to hold UNP gatherings and organise for the party. It was after the relocation to this property that the family was threatened and the house was attacked. The applicant is aware that his mother participated in the UNP by organising and attending events at the family home. However when the applicant went to work as [Occupation 1], he was not able to easily communicate with his family and he was not aware of his mother’s political activities throughout 1981 to 1995.
·The applicant was a member of the UNP in 1977 until his departure from Sri Lanka in 2012. When he returned to Colombo permanently after he finished working as [Occupation 1], he participated with the UNP on a more permanent and regular basis. His activities included leaflet dropping, putting up posters for rallies, organising meetings for his father at the family home, printing booklets about the UNP candidates, attending UMP party members’ offices to help with activities such as educating supporters. The applicant would also go out with senior organisers to advocate on behalf of the UNP and convince constituents to vote for the party. The applicant recalls that he was subject to harassment on the basis of his political opinion for a long period of time and he recalls details of several instances.
·The applicant was threatened, verbally assaulted, intimidated, attacked and beaten on the streets of Colombo and he received threatening calls that included death threats if he did not cease his political activities. The applicant was subject to this behaviour for a long period of time, although, initially he thought that he would be able to make a difference in civil society through his contribution to the party and his pro-democracy grassroots activism.
·The applicant’s sister, [Ms B] witnessed such incidents during her stay in Sri Lanka and she recalls those incidents. During her trip, she knew that the applicant must depart Sri Lanka for his own safety. She lodged an application to sponsor him for a visitor visa. In 2012, following her trip, matters escalated in Sri Lanka and the applicant knew that it was not safe for him to remain in Sri Lanka. He was granted a visitor visa and he made arrangements to come to Australia.
·The applicant has travelled to Australia on three occasions, lodging the application for a protection visa on his third visit to Australia. During his time in Australia, he has felt safe and secure. He has deep fears about what could occur in Sri Lanka, including a change of government where he could be targeted by members of the UNP who do not agree with the influence of his father and the applicant’s pro-democracy grassroots activism. The applicant did not seek protection during his travels to Australia in 2008 and 2010 as his sister had paid a bond of $10,000 which would have been lost. The applicant had worked over the course of his life and had limited expenses at the time when he was working as [Occupation] and when he returned to Colombo. As such he was able to demonstrate that he had access to funds for the purpose of the visitor visa.
·At the time of his travels to Australia in 2008 and 2010, he did not lodge a protection visa application. At the time of his travels, he was heavily invested in the political cause of the UNP at the grassroots level and he thought that he could make a difference through his active participation in activism. After the Civil War ended, the Sri Lankan government was focused on what was happening in the north of the country so he felt less threatened in 2008 and 2010 compared to 2012. During 2012, the situation became more serious and it had escalated. This created a lot of uncertainty for him and he became increasingly worried about his safety and whether there would be any serious attempts on his life because of his political opinion.
·The applicant fears serious harm as defined and there is a clear nexus with Convention grounds including membership of a political group based on his actual and imputed political opinion. The applicant’s family members have been influential with the UNP and the applicant has his own political activities as a pro-democracy grassroots activist and anticorruption pro-democracy grassroots activists. The Tribunal must assess whether the applicant would resume his activities with the UNP if returned to Sri Lanka. While acknowledging the obligation on the Tribunal to rely on the Department of Foreign Affairs (DFAT) country reports as a source of country information, that information should be scrutinised. Although there are advantages on relying on official sources over reports from non-government organisations, including media and charities, those sources may be unreliable.
·Country information confirms that Sri Lanka has a long history of political violence which occurs during elections but also outside elections. Sri Lanka has consistently been witness to political turmoil, civil war, human rights abuses, particularly of human rights activists, ethnic cleansing, torture and suicide bombings. DFAT’s report of 23 May 2018 acknowledges that the current Sri Lankan government may not be able to ensure good governance and anticorruption reforms during the current term of government.
·New agencies have reported that the Sri Lankan government failed to act on warnings before the Easter bombings in April 2019 (citing information). Following the political turmoil in Sri Lanka in October 2018 and the temporary installation of Mahinda Rajapaksa of the Sri Lankan Freedom Party (SLFP), there is renewed tension and talks of assassination plots stemming from conflict between the UNP, under Prime Minister Ranil Wickremesinghe. There have been reports of violence and there remains to be turmoil within the UNP. Country information further demonstrates the ongoing risk faced by pro-democracy grassroots political activists. Sri Lanka has had a long history of human rights abuses. At the time the applicant lodged his application for a protection visa, there were serious concerns for his safety and the applicant still holds the same fears many years later. A report of Amnesty International in 2019 continues to highlight details of attacks on human rights’ activists. Human Rights Watch reports in 2018 that there is no accountability for the police in Sri Lanka.
·The applicant is concerned about being detained and tortured on his return to Sri Lanka and this is supported by country information. The applicant would be unable to avail himself of effective state protection in relation to the harm he fears. Country information confirms not only the general unavailability of police and state protection in relation to violence against, and intimidation of, political activist in Sri Lanka. The applicant would be unable to avail himself of effective protection from the authority or police in relation to the harm that he fears. The applicant has in the past sought protection of the police with no result. This is confirmed by the experiences of his sister. The applicant is unable to relocate to other parts of Sri Lanka where he would be free from persecution. There is nowhere in Sri Lanka where the applicant could live safely. The applicant travelled to Australia [in] October 2012 and has not returned since.
·There is a real chance that the applicant would face harm on his return to Sri Lanka on account of his status as belonging to a well-known family connected with the UNP and because of his own pro-democracy grassroots political activism. In the event that the Tribunal reaches the conclusion that the applicant is not owed Australia’s protection, the matter should be referred to the Minister on compassionate and humanitarian grounds on the basis of the applicant living in Australia since October 2012 and he has settled permanently in Australia. The applicant has [a number of] Australian citizen [siblings] and has come to view himself as Australian.
·During his time as a UNP member, he worked on election campaign. His father had a friend named [Mr C] who was a UNP politician. When [Mr C] was going to retire and stop contesting the election, he and the applicant’s father had meetings at the family home to organise his replacement. They organised for Mr [D] to contest the local seat in 1977. He won the seat and did not lose it until 12 years later. His father was a supporting member of Mr [D] and they became good friends. His father supported him over his 12 year terms.
·During 2008, 2009 and 2010, the applicant assisted with UNP activities including distributing leaflets during the presidential elections and outside the election periods. During the election in 2010, he distributed leaflets from house to house, conducted meetings and put up temporary structures, including sheds to host the meetings and rallies. He mainly worked for Mr [A] who was the [office staff] of Mr [E] who was then [an office bearer] of the UNP.
·He suspected he had been watched by the opposition parties for some time because of his involvement in the UNP and because of his father’s connections with the party. He has been targeted by the Sri Lankan government and members of the special task force unit of the Sri Lankan security forces because of his political opinions. They have targeted him because they have identified him as a person who organised political activities, specifically in the western province. He has been targeted by politicians who oppose the UNP because of his history. He is also afraid of being targeted by members of the UNP who do not agree with his father’s role in the UNP.
·When his involvement with the UNP increased and on returning to Colombo permanently, he was living in a house which was [near Building 1]. However there was also a politician from [a] province named Mr [F] who lived near him. He is aware that Mr [F] undertook contracts to kill people including those who had different political beliefs. He had a large number of security personnel as he was [a member of the government]. When he realised the applicant’s involvement, trouble began with him and his large security team including the police, army officers and security personnel. At one stage he had roads closed so the applicant could not bring in any vehicles or anything from shops. He had verbal conflicts with his security staff when he was driving in and out of the house. The applicant was harassed on a daily basis. He spoke with UNP members and they told him there was nothing they could do because Mr [F] had the support of the government. The applicant did not believe that he wanted to kill him but he tried to harass and intimidate him because of his political beliefs and affiliations.
·Around 2009, there was a mob organised by the Sri Lankan [government] who came to [Building 1] and they attacked approximately [number] people. The applicant was a witness to this attack and as an opposition party member, he was targeted for speaking up. During this attack a worker ran and hid in the applicant’s garden trying to seek protection. People within the mob were throwing stones through the [Building 1] windows.
·He recalls when he was distributing leaflets, he was called “the Elephant”, with the elephant being the logo for the UNP and those remarks were directed at him as a UNP supporter from people whom he did not know. Although being called an elephant may not seem discriminatory, the way this was said made him feel threatened as he was labelled and targeted for verbal abuse and at times physical confrontations.
·In February 2012, while walking in the street, he was approached by three men who assaulted him by kicking him and insulting him. He made a mistake when he mentioned to the previously constituted Tribunal that there could have been four or five men but he remembers that there were only three men, as detailed at the time of his application for a protection visa. They told him they were from the secret police and warned him that he should stop his involvement in politics otherwise he would be dead like so many others in Colombo. The three men who approached him were driving in a [kind of car]. They stopped him at the quiet side of the street away from the public where there were no people. He cannot recall what they were wearing as he was in shock at the time. They physically and verbally assaulted and abused him.
·In March 2012 when his sister [Ms B] visited Sri Lanka, he told her about what had happened to him in February 2012 and she was very disturbed. During her trip to Sri Lanka in mid-April 2012, when they were walking together, he was verbally abused. His sister was also abused in Sri Lanka. When she was walking from her apartment, a white car pulled alongside her and they began to verbally abuse her. She took photos and they took off. She went to the police station to make a complaint but the police asked if she had any witnesses and as she did not, they did not take a written statement.
·He also received telephone calls because of his political activities and affiliations. He received anonymous telephone calls from 1995 to 2012. They knew his telephone number at [G]s house where he was living at the time and his number was advertised in respect of his [business]. He did not report those telephone calls to the police as there is no state protection from such matters in Sri Lanka. The applicant made the decision to visit his sister in Australia and fled Sri Lanka. He was worried about his safety after all those incidents and the increasing violence because of the Sri Lankan Civil War. He has been in Australia since [October] 2012 and if forced to return to Sri Lanka, he is not sure what would happen to him. Since his arrival in Australia, he has heard that Mr [F] had enquired about his whereabouts.
·He has deep fears that the Sri Lankan government would change as there is current political turmoil and tension and that the opposition will again be in power and he would then be targeted. He would be targeted by those within the UNP who are not happy about his role in his father’s involvement with the UNP. He is particularly afraid of the state intelligence service, the military service, the local police and the political thugs who are engaged by corrupt politician. He does not believe that the Sri Lankan authorities have the capacity to protect him. If returned, he fears that he would be kidnapped, tortured or murdered. He would be at greater risk of harm in case of a change in government.
·Since his arrival in Australia, he has not engaged in political rallies or events but he has kept up-to-date with what is happening in Sri Lanka. The political violence continues. He comes from a family of [number] siblings all but one of his siblings have left Sri Lanka. The majority of his family members live in Australia and he has been in Australia since 2012.
Statutory declaration of Ms [B]
Ms [B] is the applicant’s sister. She is an Australian citizen and she arrived in Australia in 1987. Essentially, Ms [B] outlined her background and referred to growing up in the family where the parents organised many political events and gatherings at the family home. She corroborated the applicant’s claims in relation to the family’s involvement with the UNP. She expressed her belief that the applicant is in great danger if he were to return to Sri Lanka where the situation remains volatile and although the UNP may be in power currently, there could be a change of government. She stated that as her father was influential with the UNP, members of the party who did not agree with him could target the applicant.
The applicant provided to the Tribunal a newspaper article titled Ceylonese Visitors View York Plant, which refers to the applicant’s father as a “…prominent Ceylonese Contractor…”. The applicant also provided photographs.
Hearing on 22 May 2019
In the course of the hearing, the Tribunal discussed with the applicant the claims relating to the UNP, specifically his own activities. The applicant gave evidence that in 2004 to 2007, he worked for two politicians and organised rallies, meetings, and distributed pamphlets. In relation to other activities, he stated that he participated in the removal of members of the UNP leadership because they were not considered to be suitable. He stated that prior to 2004, he went to the UNP headquarters to discuss the party and future aspirations. The applicant gave detailed evidence about his political involvement, as well as his family’s involvement with the UNP, particularly the financial support port that his father provided to the party. The applicant gave evidence of the harm he had suffered at the hands of the security forces and stated that he fears returning to Sri Lanka in the current situation.
The Tribunal referred to the fact that the applicant had been to Australia on two previous occasions and did not seek protection at those times. He stated that serious incidents had not occurred. The Tribunal expressed concerns about the delay and suggested that it could raise doubts about the genuineness of his fear of harm.
The Tribunal asked the applicant about his faith and he stated he practises both Buddhism and Christianity as his father was a Buddhist and his mother was a Christian. The Tribunal asked the applicant if he has suffered any harm on the ground of his religion and the applicant confirmed that he had not suffered any such harm.
The applicant’s sister gave evidence and discussed the family’s involvement in political activities and having witnessed an incident of harm in relation to the applicant. As far as the issue of the delay in lodging the application for a protection visa, she stated that had the applicant applied, they would have lost $10,000 which is a substantial sum of money.
POST HEARING SUBMISSIONS
Submissions of 19 JUNE 2019
In submissions dated 19 June 2019, the representative summarised the applicant's claims as supported by country information. The representative reiterated that the applicant is owed protection obligations under section 36(2)(a) of the Act on the grounds of membership of a particular social group and (actual or imputed) political opinion. In essence, the representative submitted that:
·The applicant holds membership of two social groups, family members of influential members of the UNP and Pro-democracy grass roots political activists.
·He has a higher risk profile than an ordinary member of the above two social groups. His family history places him at a greater risk. The applicant holds beliefs contrary to the members of the UNP, which in turn would raise his risk-profile. That is, the UNP was elected in 2015 on a platform of anti-corruption but the international community has seen little action by the country towards reducing corruption. The applicant is a grass roots pro-democracy activist. He would continue his advocacy for democracy upon his return to Sri Lanka, in particular, speaking out against the rampant corruptions, thereby placing him at odds with the leadership of the UNP.
·There is real difference between those involved as members of the UNP at the grass roots level and the current leadership of the UNP. At present, the UNP is involved in a coalition with the Sri Lanka Freedom Party ('SLFP'), which led to a constitutional crisis in October 2018. The UNP and SLFP have historically been rivals and as a result of their ideological differences, an increasingly evident heavy strain has been placed on both parties.
·The international community has seen little action by the country towards reducing corruption. There has been no visible action against corruption. Sri Lanka was ranked 89th out of 100 in the Transparency International rankings with a score of 38/100 of perceived corruption in 2018.
·The applicant would face restrictions on his freedom to advocate democracy and he would be subject to further serious harm. In support of his claim, the applicant makes reference to a passage in the 2017 Freedom House report on Sri Lanka. In essence, the passage outlines the restrictions placed on democracy activists. The police used tear gas and water cannons to disperse protesters and the army has placed restrictions on assembly in the north and east, particularly in respect to planned memorial events. There are reports (cited) of the harassment and intimation faced by those who speak out against corruption including journalists who report on corruption and who are also subject to harassment.
·Should the Tribunal not accept that the applicant is owed protection obligations under section 36(2)(a) of the Act, the applicant claims that his fear of physical harm may equally be characterised under the 'complementary protection' provisions of subsections 36(2)(aa) and (2A) of the Act. Country information indicates that state protection in relation to the harm he fears under subsection 36(2)(aa) is unavailable and he is unable to relocate to avoid or escape the harm he fears
Submissions dated 1 July 2019

Those submissions focussed on a request to refer the matter to the Minister for Ministerial Intervention pursuant to section 417 of the Act, in case the Tribunal were to reach findings that the applicant is not owed protection obligations under section 36(2)(a) of the Act or under the 'complementary protection' provisions of subsections 36(2)(aa) and (2A) of the Act. Amongst other things, the submissions highlighted the length of time the applicant has been in Australia, his [number] Australian citizen [siblings], Australian citizen nieces and nephews, his strong relationships and ties with his Australian citizen [siblings] and their children, and the significant threat to the applicant's personal security, human rights or human dignity in Sri Lanka.
FINDINGS and REASONS
Country of nationality
On the basis of the available information, the Tribunal finds that the applicant is a national of Sri Lanka. The applicant made no claim to be a national of any other country.
The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).
The applicant’s claims
The central claims made by the applicant are that he and his family have had a substantial involvement in political activities in Sri Lanka. He fears returning because he claims that he is of adverse interest and would face harm if returned to Sri Lanka. He claims that his fear is heightened in the context of the current situation in Sri Lanka.
Security level in Sri Lanka
The Tribunal acknowledges that the incidents of Easter 2019 have created a level of insecurity in Sri Lanka. However, this level of insecurity needs to be considered in the context of substantial advancements over the last 10 years, since the end of the war. As noted by DFAT, the security situation in Sri Lanka, particularly in the north and east, has “significantly improved since the conflict ended in May 2009. The Sri Lankan government exercises effective control over the entire country.”[3] It is an established principle that the relevant state is not required to guarantee the safety of its citizens from harm caused by non-state persons.[4] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[5] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[6]
[3] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 11.
[4] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.
[5] (2004) 222 CLR 1 at [26].
[6] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].
What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[7] or a ‘reasonably effective police force and a reasonably impartial system of justice’,[8] indicating that the appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[9] Thus, an unwillingness to seek protection will be justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to ‘international standards’.[10]
[7] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].
[8] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].
[9] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27], citing Osman v United Kingdom (1998) 29 EHRR 245.
[10] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29].
While the joint judgment in S152/2003 gives support to the use of ‘international standards’ as a benchmark of adequate protection levels, it does not necessarily require an administrative decision maker to identify and specify the ‘international standards’ against which to assess a particular country’s responses to a claimed fear of persecution by non-state agents.
In MZRAJ v MIMIA, Heerey J stated that:
[t]he ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, “international standards” of protection and matches the law enforcement machinery of the state in question against those standards.[11]
[11] [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]. See also SZBBE v MIMIA [2004] FMCA 753 (Raphael FM, 8 November 2004) and on appeal SZBBE v MIMIA [2005] FCA 264 (Jacobson J, 24 March 2005) at [46]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005); NASJ v MIMIA [2005] FMCA 124 (Barnes FM, 25 February 2005) at [9]; SZGHC v MIAC [2007] FMCA 570 (Driver FM, 7 May 2007) at [27]; SZCAL v MIAC [2008] FMCA 330 (Orchiston FM, 20 March 2008) at [51]-[56]; and SZOET v MIAC [2010] FMCA 483 (Smith FM, 5 July 2010) at [23]-[24]. Contrast A99 of 2003 v MIMIA [2004] FCA 773 (Mansfield J, 9 July 2004).
The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[12] However Osman’s case, referred to in S152/2003, may provide some limited guidance. That case was concerned with the right to life protected by Article 2.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[13] The Court described the state’s primary duty in this respect as a duty ‘to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’.[14] The Court held that such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.[15] Some guidance can also be found in Australian case law predating S152/2003. In Prathapan at first instance, Madgwick J referred to ‘a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy’ as ordinarily amounting to effective and ‘available’ protection.[16] His Honour stated:
[12] See MZ RAJ v MIMIA [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]-[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005) at [30]-[34].
[13] Article 2.1 enjoins the state to refrain from the intentional and unlawful taking of life, and also to take appropriate steps to safeguard the lives of those within its jurisdiction.
[14] Osman v United Kingdom (1998) 29 EHRR 245 at [115].
[15] Osman v United Kingdom (1998) 29 EHRR 245 at [116].
[16] Prathapan v MIMA (1998) 47 ALD 41.
No doubt the protection in question must be effective and “available”, and an actual inquiry into this must be made: Jong Kim Koe.[17] However, in 1951 and since, having regard to the realities of nations and the practicalities of applying the Convention, the framers and keepers of the Convention would hardly have envisaged that a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy, would not ordinarily amount to effective and “available” protection.[18]
[17] Koe v MIMA (1997) 74 FCR 508.
[18]Prathapan v MIMA (1998) 47 ALD 41 at 48. This decision was overturned on appeal (MIMA v Prathapan (1998) 86 FCR 95) but this point was not disturbed.
Similarly, the Full Court in A v MIMA explained that where the decision maker has a view based on available material that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort feared, in the absence of evidence advanced by the claimant, the decision maker will be entitled to reject the contention that the applicant is unable or unwilling for a Convention reason to avail him or herself of the protection of that country.[19]
[19] [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) at [42]. Note that some aspects of the discussion of protection in that case may not be consistent with what was said about the second limb of Article 1A(2) in the joint judgment in MIMA v Respondents S152/2003 at [28].
The delegate accepted that the applicant has “a level of political awareness commensurate with that of someone who has been politically active, even though I continue to be of the view that the applicant does not hold a political profile. At interview the applicant provided further information surrounding his reasons for fearing persecution on return to Sri Lanka. He claims that his family has been a long-standing supporter of the UNP; therefore he received threats and has been assaulted on account of political support of the UNP”. The delegate expressed concerns about the delay in lodging the application for a protection visa which in the delegate’s view, raised doubts about the applicant’s fear of returning to Sri Lanka.
There are aspects of this matter that raise doubts about some of the applicant’s claims; the Tribunal has concerns about the delay in the applicant’s lodging the protection visa application and the Tribunal does not accept that the $10,000 that would have been paid is a convincing explanation in relation to the delay. The Tribunal also notes that when the application for a protection visa was originally lodged, the claims lacked many of the specific details that have been put before the Tribunal currently. The Tribunal conducted a hearing and considered the evidence cumulatively. The concerns the Tribunal has about the matter are insufficient for the Tribunal to reach an adverse credibility finding, or not to accept the substance of the applicant’s claims. Although it is plausible that the applicant has embellished some of the claims, that potential embellishment cannot in itself discredit the entirety of the applicant’s claims. On balance of the evidence, the Tribunal considers the applicant to be a generally credible witness about his experiences in Sri Lanka. The Tribunal found the applicant’s evidence to be overall consistent and coherent.
Having considered the evidence carefully, the Tribunal is satisfied that the applicant’s family for many years has had a history of political involvement. The Tribunal is satisfied on the evidence that for a substantial period of time, the applicant’s family made donations and held meetings and functions at the family home. The Tribunal is satisfied that the financial contributions, as well as other activities have given the family a political profile in terms of being actively involved in the UNP.
The Tribunal is satisfied on the evidence that the applicant himself was involved in what amounts to political activities. On the evidence, the Tribunal is satisfied that the applicant assisted with UNP activities including distributing leaflets during the presidential elections and outside the election periods and that during the election in 2010, he distributed leaflets from house to house, conducted meetings and put up temporary structures, including sheds to host the meetings and rallies. The Tribunal finds it plausible that the applicant was watched by the opposition parties for some time because of his involvement in the UNP and because of his father’s connections with the party. The Tribunal finds it plausible that the applicant was targeted by the Sri Lankan government and members of the special task force unit of the Sri Lankan security forces because of his political opinions. The Tribunal finds it plausible that the applicant has been targeted by politicians who oppose the UNP because of his history and that it is plausible that he could be targeted by members of the UNP who do not agree with his father’s role in the UNP. The Tribunal is satisfied that when the applicant was distributing leaflets, he was called “the Elephant” and that In February 2012, while walking in the street, he was approached by three men who assaulted him by kicking him and insulting him. The Tribunal is satisfied that during his sister’s trip in mid-April 2012 when they were walking together, they were both verbally abused and that it is plausible that the applicant received anonymous telephone calls from 1995 to 2012. Given the applicant’s history and that of his family, the Tribunal accepts as plausible that the Sri Lankan authorities would find him to have a profile of interest. The question of profile is important in the assessment of future risk of harm.
Future risk of harm to the applicant
In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future.
Although the applicant does not fit the profile of a person who could be targeted, in his case there are a number of factors that indicate an increased risk of harm to the applicant if he were to return to Sri Lanka. The Tribunal and for the stated reasons found that the applicant has a profile of interest. The Tribunal is satisfied that this profile is of adverse interest and that it is plausible that the Sri Lankan authorities maintain a continuing interest in the applicant and the family. The Tribunal accepts that there is a real chance that he would attract their adverse attention if returned to Sri Lanka. DFAT reports that Sri Lankan returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service, the Terrorism Investigation Department and the CID. These agencies check travel documents and identity information against immigration databases, intelligence databases and the records of outstanding criminal matters.
The UN Special Rapporteur on the Committee Against Torture visited Sri Lanka in April/ May 2016, reporting that while the practice of torture was less prevalent than during the conflict and the methods used at times less severe, a culture of torture persists, with physical and mental coercion used against suspects being interviewed by the CID and the Terrorism Protection Division[20]. In its June 2017 report, the UK Home Office cited a Human Rights Watch report to the effect that police use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions. It reported that police used torture and other forms of coercion as a shortcut to obtain confessions and to facilitate convictions, including for very minor alleged offences.[21]
[20] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 23 May 2018 at 8.5.5
[21] UK Home Office Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017
DFAT reports that while the Sri Lankan constitution specifically prohibits torture, several local and international organisations have alleged torture by the Sri Lankan military and intelligence forces, mostly perpetrated by the police against members of the Tamil community and involving people with imputed links to the LTTE.[22] The United Kingdom Upper Tribunal has found that if ‘a person is detained by the Sri Lankan security services, there remains a real risk of harm requiring international protection’.[23]
[22] Department of Foreign Affairs and Trade DFAT Country Information Report: Sri Lanka 23 May 2018
[23] GJ and Others (Post-civil war Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4)
The applicant is not claiming that he or any member of his family has been associated with the LTTE. In its Report, DFAT refers to the treatment of those with a political profile and although those with an adverse profile are essentially linked in some way with the LTTE[24], the Tribunal is of the view that it is also plausible that a person such as the applicant with his past political activities could attract adverse attention. The Tribunal has been persuaded by the submissions that the UNP is involved in a coalition with the Sri Lanka Freedom Party ('SLFP'), which has led to a constitutional crisis in October 2018. The Tribunal accepts that the UNP and SLFP have historically been rivals and as a result of their ideological differences, an increasingly evident heavy strain has been placed on both parties. The Tribunal accepts that the applicant has a high risk profile due to family history and his own activities which place him at a greater risk. The Tribunal is satisfied that the applicant holds beliefs contrary to the members of the UNP, which in turn would raise his risk profile. The Tribunal accepts that the applicant is a grass roots pro-democracy activist and that he would continue his advocacy for democracy upon his return to Sri Lanka, in particular, speaking out against corruptions, thereby placing him at odds with the leadership of the UNP.
[24] DFAT COUNTRY INFORMATION REPORT SRI LANKA, 23 May 2018, p 19.
On the evidence before it, the Tribunal is satisfied that the applicant has a profile of being involved and associated with political activities and that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because of that profile. In essence, the Tribunal finds that the applicant does have an actual and imputed political profile to mean a real risk or a real chance of significant or serious harm.
In light of those findings, the Tribunal is satisfied that there is a real chance the applicant would be questioned and that he would be subjected to harm and mistreatment constituting serious harm during that process. The Tribunal is therefore satisfied that there is a real chance that the applicant would 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 actual or imputed political opinion.
As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection would not be available to the applicant and relocating internally within Sri Lanka would not remove the threat of harm.
For these reasons, the Tribunal finds that the applicant has a well-founded fear of persecution if he were to return to Sri Lanka for reasons of his actual and imputed political opinions. It follows that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and he satisfies the criterion set out in 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.
Antoinette Younes

Senior Member