1731022 (Refugee)

1731022 (Refugee) [2023] AATA 2506 (27 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms KATHLEEN CLARE COFFEY (MARN: 1067518)
CASE NUMBER:  1731022
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Rachel Da Costa
DATE:27 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 April 2023 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed or actual political opinion – original claim as suspected supporter of LTTE – detained, questioned, beaten and pressured to inform on others – later claim as low-level, non-combatant member – wounded, surrendered, rehabilitated and released – returned failed asylum seeker – wife and daughters’ fear of harm from gender-based discrimination, harassment or violence – economic and political unrest – credibility – inconsistent claims and evidence – obtained passport and departed legally – no significant political activity in Australia – country information – members of family unit – Australian-born child now citizen and not included in application – genuine efforts to integrate – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 235 ALR 609
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 November 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Sri Lanka, applied for the visas on 26 May 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background and migration history
The first applicant (the applicant) is a [Age]-year-old man from Sri Lanka. The second applicant is a [Age]-year-old woman from Sri Lanka and is the applicant’s wife. The third applicant is a [Age]-year-old woman from Sri Lanka who is the eldest daughter of the applicant and his wife. The fourth applicant is a [Age]-year-old girl who is the daughter of the applicant and his wife and who was born in Australia. The applicant and his wife also have a son aged [Age] who was born in Australia and who, for reasons explained below, is not included in this application.
The applicant, his wife and eldest daughter arrived in Australia by boat in March 2010 at Christmas Island as unauthorised maritime arrivals.
In their protection visa application forms, the second, third and fourth applicants indicate that they do not have their own claims for protection.
In his protection visa application form, the applicant provides the following information. He was born in [Town 1], [District 1], in the Northern Province of Sri Lanka. His parents are both Sri Lankan citizens. He speaks, reads and writes Tamil and speaks English. His ethnicity is Tamil and his religion is Hindu.
He married his wife in [Year]. In Sri Lanka, he has his mother and sister. He is in contact with them by phone.
He departed Sri Lanka legally from Colombo Airport [in] March 2010 using his Sri Lankan passport. A smuggler took his passport. He first travelled to [Country 1] and then to [Country 2]. From March 2010 to February 2011, he was held in immigration detention.
From [Birth] to [Year], he lived in [Town 1], Vanni in the Northern Province of Sri Lanka. From [Year] to April 2003, he lived in [Village 1], [District 2], Northern Province. From April 2003 to February 2008, he lived in [Village 2], [District 2]. From February 2000 to March 2010, he lived in [Village 3], [District 2]. Then he departed for Australia.
The applicant completed High School in [Year] in [Village 1], [District 2]. From [Year] to March 2010, the applicant was self-employed as a farmer in [District 2]. From April 2003 to March 2010, the applicant was self-employed as a shop keeper assisting his wife in a village shop in [District 2].
The applicant provided copies of various identity documents including his Sri Lankan birth certificate with an English translation, his marriage certificate, a copy of the bio-data page of his Sri Lankan passport, copies of the Australian birth certificates of two of his children and some other identity cards.
The applicants’ visa application history since arriving in Australia, as extracted from documents on the Department and Tribunal files, is as follows:
·     [March] 2010: applicant, wife and eldest daughter arrive in Australia by boat
·     3 April 2010: Arrival interview conducted with the applicant
·     26 July 2010: Refugee Status Assessment (RSA) decision in respect of the applicant, his wife and eldest daughter (outcome negative for the applicants)
·     [Date]: applicant’s son born in Australia
·     21 December 2011: Independent Merits Review (IMR) decision in respect of the applicant, his wife, eldest daughter and son (outcome positive for the applicants)
·     [Date]: applicant’s daughter (the fourth applicant) born in Australia
·     16 December 2016: applicant, wife and three children apply for a Safe Haven Enterprise visa (SHEV)
·     28 November 2017: delegate’s decision in respect of the applicant, his wife and two daughters (outcome negative for the applicants)
·     8 December 2017: application made to the Tribunal for review of the delegate’s decision
·     [Date]: applicant’s son acquired Australian citizenship.
The applicant’s son applied for a protection visa on 30 March 2011. His parents and elder sister were also included in the application as members of the family unit. On 29 April 2011, the delegate refused the application. On 13 May 2011, the applicant (but not his family members) applied for review to the Refugee Review Tribunal (RRT). On 28 December 2011, the RRT affirmed the delegate’s decision in respect of the applicant’s son.
Evidence before the Department
Refugee Status Assessment (RSA)
The applicant’s claims and the findings at the RSA level are set out in detail in the delegate’s decision reproduced below. The information in the claims section comes from the applicant’s statutory declaration dated 23 April 2010 and the information he provided in an interview on 26 April 2010 (unedited):
Refugee Status Assessment – Claims and assessment
Claims
The applicant is a Sri Lankan national of Tamil ethnicity and belongs to the Hindu faith. He was born in [District 1] and spent the majority of his life in various towns of [District 2].
He was arrested [in] June 1997 and taken to [Camp 1] in [District 2] on suspicion of being a LTTE supporter. He was detained for three days during which he was tortured. He was then transferred to [District 1] police, where he was detained for four days and during which he was again tortured. He was then transferred to [Camp 2] in [District 1] where he was chained to a bed with another person for a number of days. He was then sent to a rehabilitation camp at [Town 2] where he was detained until June 1998. He was then given a letter stating that if he was again arrested, he should be released. He was later recalled for questioning and asked by the Criminal Investigation Department (CID) to go to LTTE areas and identify LTTE members. He however did not agree to do this.
He was arrested one morning in December 1998 when he was caught by the army in possession of a video camera. He was released that evening.
The applicant was again arrested in 1999 on allegation that he as a support of the LTTE and spent 17 days in [District 1] jail. This arrest occurred as a consequence of an explosion after which the army rounded up people including the applicant. He was taken to [Location 1] before being sent to [District 1] and being handed over to police. He was subsequently tortured before being taken to court and being provided with a letter. He was released without any conviction. He was subsequently summoned on a number of occasions to Sri Lankan Army (SLA) offices in [District 2] and questioned about LTTE supporters. On each occasion he said that he did not know anything about the LTTE or its supporters.
The applicant did not experience problems between 2001 and 2006. He made unsuccessful visa applications through the [Country 3] and Australian embassies in 2007 and 2008.
Between 2003 and 2009 the ClD and other groups were looking for him on three or four occasions. In 2009 he sold his house and moved to [Village 3] due to white van that came in search of him. The ClD and other groups came because he wasn’t help them.
On [Day 1] February 2010 the applicant had an encounter with a former member of the ClD of the Sri Lankan Police Force at the [District 2] market. This ClD officer had previously been to the applicant's mother's home and had obtained a photo of him. The applicant was forced upstairs, questioned about his LTTE connections, slapped and told to attend the [Town 3] Army Headquarters (HQ) on the following day. The applicant did not attend. People who went to army camps were usually killed and dropped on the roadside.
On [Day 2] February 2010 unidentified armed men attended his home and in his absence threatened his wife and searched their home. The armed men told his wife to tell the applicant to report to the HQ on the next day. The applicant decided to flee Sri Lanka and sated at relatives houses until 5 March 2010.
The applicant had read in newspapers that people had been raped in areas being controlled by the army. [The applicant's wife] was also interviewed during which she reiterated the applicant's claims.
Findings
It was accepted that the applicant is a Sri Lankan citizen of Tamil ethnicity; that his fears are based on the perception of the SLA that he is a supporter of the LTTE; and, because he is a Tamil. He fears being killed on return to Sri Lanka by the security forces due to his imputed support of the LTTE.

Based on relevant country information cited in the assessment and the applicant's testimony, it was accepted that the incidents he claims occurred to him between 1997 and 1999 did occur.
However, it was found that during the course of the RSA interview, the applicant made a number of contradictory statements regarding the later events, initially stating he had no problems between 2001 and 2006 and then stating that the ClD, army, other groups or white vans were looking for him on three or four occasions between 2003 and 2009. He also did not articulate when questioned about why he decided to move in 2009 after he had stated that he had problems during the preceding 6 years. He could not clearly indicate why he chose that point in time to relocate or strongly link his movement to treatment or fear.
With regard to the incident that he claimed occurred in the [District 2] market, he stated that the man recognised him due to a shared history in 1999 and separately that he identified him from a photo the ClD had obtained from his mother's home. He also stated that he was taken upstairs into a building where he was questioned and beaten (RSA interview) or slapped (RSA statement of claims).

It was considered that this information was in contrast to the information previously provided at the entry interview on 3 April 2010 where he stated that he had no problems until 2006, then stating that the army remembered him from not helping them in 1999; and, that the army started going to his house looking for him in 2006, during which he would run outside and go to his neighbour or friend's houses and that this continued until 2010. He also stated at that interview (entry interview) that the ClD officer who identified him at the [District 2] market was stationed at the [Town 3] checkpoint in 1999 and that he was beaten in public at the [District 2] market.
From the above it was considered that while there was a pattern of activity for over 10 years, the timeline varied considerably. While the army and ClD asked him to inform and identify LTTE members he stated that he did not comply in 1999 or later. It was considered that the actions appeared to be considerably embellished given the varying dates and level of interaction; and while it was accepted that he suffered significant injustice and torture in the past, in the 1997 to 1999 period as described in his claims, it was considered that this ceased subsequent to 1999.
It was noted that the applicant was not detained at any time following the end of the war and was not one of the hundreds of thousands of Northern Sri Lankan Tamils interned at the end of the war.

The applicant also claimed at the RSA interview that his most recent passport was obtained in 2010 after he had lost his old one and this occurred prior to the incident at the market, because he was thinking of leaving but hadn't had an opportunity to do so legally. He also advised his family had no issues obtaining Sri Lankan passports from the government and he had no problem departing Sri Lanka advising Colombo airport staff he was taking his family on a holiday.

It was found that the applicant's imputed political opinion based on his support for the LTTE was not well-founded. The applicant's description of events that would lend weight to his argument of continued adverse attention were found inconsistent and vague. He did not describe any actual opinion that could be seen as supportive of the LTTE and he expressly stated at interview that he did not support the LTTE. His continued freedom through the end of the conflict and into the present, given the massive detention by Sri Lankan forces of any Tamils they suspected of support to the LTTE indicated that the security forces did not in fact impute him with a political opinion. It was found that he embellished or fabricated recent events to assist his entry in Australia. It was found that his recent personal history and the changing situation in Sri Lanka was such that the applicant would not suffer serious harm amounting to persecution on return to Sri Lanka.
Independent Merits Review (IMR)
The applicant’s claims and the findings at the IMR level made on 21 December 2011 are set out in detail in the delegate’s decision as follows (unedited):
Independent Merits Review – decision
Briefly, following interviews with both applicants 1 and 2, it was found at review that:
·As Tamils living in the north of Sri Lanka, they were caught up in the conflict between the LTTE and the Sri Lankan Government since early childhood. They were required, both separately before and together after their marriage, to provide assistance to the LTTE, whether by way of digging bunkers, decorating villages to mark the return of LTTE casualties or witnessing their parents being forced to give over a part of the family home for the use of the LTTE.
·Applicant 1 was taken in for questioning on several occasions and was arrested and detained for 12 months in a rehabilitation camp in 1997 at the age of [Age]. From the time of his release in 1998, he was intermittently called in for questioning by the Intelligence branch (ClD) of the Sri Lankan Army, which required him to inform on LTTE activities. This continued occasionally during the period of the ceasefire, between 2003 and 2006.
·Prior to his marriage he moved from his mother's house to a different location in the hope of evading the interrogators. Following the end of the ceasefire and the recommencement of hostilities, he and his wife were pressured into storing goods for the LTTE at their shop. The LTTE contact who had demanded their cooperation, was subsequently abducted, following which the Army came looking for applicant 1, threatening and harassing his wife. They urgently sold their house and attempted to leave the country illegally for India, but were prevented when the boat crew was detected and stopped by the Navy. Thereafter they moved between relatives houses for about 12 months, prior to renting accommodation of their own due to the risk they were causing to their relatives as being wanted for questioning by the Army
·Applicant 1 was recognised by the CID in a market near their rented accommodation, dragged to an upstairs room and ordered to attend the Army camp the following day for questioning. Following his failure to attend, the Army went looking for the applicant and again threatened his wife with weapons and searched their house. This led to their decision to leave Sri Lanka.
·They were assisted by an agent in travelling overnight by bus to Colombo, obtaining plane tickets and bribing airport officials. They fear returning to Sri Lanka because there are official records of applicant 1's detention for 12 months and because of the ongoing interest in him by the Sri Lankan Army intelligence, who knew he was cooperating with the LTTE by storing LTTE goods.
·The applicants fear being detained at the airport in Colombo if they have to return, especially as there is no record of their departure. They have heard news of ongoing instances of abductions and violence including rape, being committed against Tamils suspected of being supporters of the LTTE, by the Army and paramilitary groups supporting the Sri Lankan government
·Both applicants 1 and 2 are Tamils from the north of Sri Lanka. They were both eager to explain their experiences and were open in their responses to questions. No significant inconsistencies were found between the content of their previous entry and RSA interviews and their evidence at the two IPAO interviews conducted. Where clarification was sought, both applicant 1 and 2 readily responded in detail and there was no reason to doubt explanations provided.
·The reasons for not having previously explained their involvement in providing support for the LTTE, because they were afraid of how that would be perceived in Australia; and, because they had never been in an interview situation of that kind before, was accepted. The reviewer did not gain the sense at any stage of the interviews that either applicant 1 or 2 were exaggerating their experiences to attempt to strengthen their case
·Both applicants 1 and 2 experienced displacement due to the conflict between the LTTE and Sri Lankan Army, since the mid-1980s, when they were [school age]; and it was accepted that applicant 2 was subjected to molestation of a sexual nature in her early teenage years, when living with her parents in Jaffna at the time of the presence of the Indian Army in Jaffna
·Applicant 1 was arrested and detained in a rehabilitation camp for 12 months between 1997 and 1998 and that following his release, he was expected to inform on the LTTE and was in fact, called in for questioning and detained on two further occasions prior to 2000. He was intermittently questioned by the Sri Lankan Army intelligence branch (ClD) on a number of occasions over the 10-year period between 2000 and 2010, including during the ceasefire. His evidence was found credible and compelling and also because as a male of small stature and with a [Body part] injury from a bomb blast, which continues to affect his mobility, it is more than likely that he would be perceived as vulnerable to threats and intimidation.
·There was no reason to doubt the claim that the LTTE member who demanded their cooperation in storing goods temporarily, was abducted as it is consistent with county information relating to the activities between the Sri Lankan Army and paramilitary groups in defeating the LTTE.
·Applicants 1 and 2 sought the assistance of the International Red Cross, the Australian and [Country 3] Embassies to leave the country; and also that they paid people smugglers to get them to India by boat from [District 2], but were caught by Navy personnel and had to pay a bribe to be released.
·The reason for selling their house to a cousin for much less that the property was worth, was to raise money to leave the country and that following their failed attempt to get to India, they moved between the houses of relatives in an effort to evade the Army Intelligence officers who had come searching for applicant 1 following the abduction of the LTTE member involved in establishing their shop as a place to store goods.
·Country information regarding the return of failed asylum seekers to Sri Lanka, that there is a real chance that [the applicant] would be detected on arrival as having been wanted for questioning, because there are official records (which I accept as authentic), documenting his imprisonment and because their departure from Sri Lanka was undocumented, having been facilitated by bribery.
·The applicants did not reveal the extent of their involvement with the LTTE, specifically regarding the storage of goods because they were unsure how that would be viewed in Australia and because they had never been in a formal interview situation of that nature before.
Based on applicant 1's documented history of detention and questioning over many years, it was found that there was a real chance that on return to Sri Lanka, he would be questioned, detained and tortured. This was based on country information from the period, which referred to evidence that the Sri Lankan authorities continued to search for and detain people merely suspected of being LTTE sympathisers, in order to prevent any violent separatist insurgence.
It was also accepted that there was a real chance of applicant 2 being detained and questioned and possibly subjected to torture, because of her family tie to her husband, her active involvement in protecting him from the interrogators and her perceived complicity in the activities of the LTTE by the storage of goods.
For the reasons stated in the above paragraphs, it was accepted that both applicant's 1 and 2 had a well-founded fear of persecution should they be returned to Sri Lanka. Country evidence cited in the decision indicated that a major source of harassment of Tamil civilians was from the Sri Lankan Army, whether working in conjunction with the Police or separately, and paramilitary groups which support the Government. The likely arrest, interrogation and torture of both applicants constituted serious harm for the purpose of s9lR(1). The essential and significant motivation for the persecution feared by both applicants, was an imputed political opinion, specifically that they were assumed to be sympathisers and supporters of the LTTE.
It was also found that there was no evidence that applicant 1 would attract the provisions of Article 1F; and, with regard to his involvement with the LTTE, it was found to be limited and coerced.
Safe Haven Enterprise visa (SHEV) application

In their decision, the delegate also sets out in detail the applicant’s claims made in his SHEV application which was accompanied by a statutory declaration dated 16 December 2016 (unedited):
SHEV application
The applicant's claims for protection, including those provided at interview, and supporting evidence including post interview submission, are contained in [Department reference]. In his application for a SHEV the applicant provided the following written claims dated 16 December 2016 (in summary):
·     He was previously found to be owed protection and given his personal circumstances have not changed since he was found to be a refugee, he believes that finding should remain.
·     He was forced to flee Sri Lanka due to his race, gender, age and area of origin, reasons of which led to him experiencing many difficulties and from which he feared being subjected to serious harm.
·     [In] June 1997, he was arrested during a Sri Lankan army (SLA) round up in [District 2] and taken to [Camp 1] in [District 2] on suspicion of being a supporter of the LTTE. He was detained by the SLA for three days during which he was assaulted and tortured. He was then handed over to the [District 1] Police and held by them for four days during which he was again tortured. He was then transferred to [Camp 2] in [District 1] where he was chained to a bed with another person and kept for a few days before being sent to a rehabilitation camp at [Town 2]. He was released from that camp in June 1998 and returned to his home in [Village 1], [District 2].
·     In 1999 he was arrested again as an alleged supporter of the LTTE and spent seventeen days in [District 1] jail. He was released without being convicted of anything.
·     He was summoned several times by the SLA to attend their offices in [District 2] and asked questions about LTTE supporters. On every occasion, he explained that he did not know anything about the LTTE or its supporters.
·     Between 2002 and 2006, there was a peace agreement between the government and the LTTE
·     In 2006, he operated a shop as a secondary income, which his wife (applicant 2) looked after. The LTTE forced him to store [products] for them in this shop.
·     On [Day 1] February 2010, the applicant went to the market in [District 2] where by pure coincidence he ran into a former CID who was still in the army. The applicant was forced into a building, taken upstairs and interrogated about his connections with the LTTE; and, then slapped. The former CID officer then told him to go and see him on the following day at the [Town 3] Checkpoint. The applicant did not attend as he feared for my life.
·     On [Day 2] February 2010, unidentified armed people went to the applicant's home looking for him. His wife was at home and was threatened as they conducted a search of the premises. She was told that the applicant should present himself at the headquarters the next day. When the applicant returned home, he and his wife decided they had to leave the country because his life was in danger.
·     Between [Day 2] February 2010 and [March] 2010, they were in hiding, staying at a friend's house, three houses away from their own and then later at their own relatives' houses to avoid being found. They left [District 2] [in] March 2010.
·     The applicant was able to obtain a valid passport because he was not on the government's wanted list, as that list is specific to those charged with much more serious crimes than being an accessory or supporter of the LTTE. As he was still being pursued by the CID and in fear of being caught at the airport, he could only flee the country after paying a smuggler to pre-arrange his departure.
·     The applicant fears he will be seriously harmed or killed and further, that he would be subjected to cruel, inhuman and degrading treatment and punishment. He fears harm on return from the SLA and associated groups, including the CID.
·     Given his age, race and the fact that he escaped the country near the end of the War, he will be treated with a high level of suspicion and be subjected to serious harm on return. In particular, he will be at risk of harm as he previously assisted the LTTE.
·     He will also be at risk of harm given the large amount of time spent abroad and given he obtained protection in Australia. This would result in me being treated with a high level of suspicion on return.
·     The situation for Tamils in the North of Sri Lanka remains very difficult. There is a still a strong military presence and Tamils cannot live freely. He would be continuously monitored and would not be able to live freely. He is fearful that he would be killed and his wife would be left a widow and his children orphans. This would place them at risk of harm.
·     Given his race, the fact he has been abroad for many years and his previous dealings with the authorities, he would be imprisoned on return to Sri Lanka. While imprisoned, the Sri Lankan Authorities may subject him to torture, cruel, inhuman and degrading treatment and punishment to obtain information from him.
As noted by the delegate, on 31 October 2017, the applicant provided a new written statement in support of his SHEV application in which he makes significant new claims about having been involved with the Liberation Tigers of Tamil Eelam (LTTE)[1] in Sri Lanka. Again, as set out in the delegate’s decision, the applicant claims as follows (unedited):
[1] DFAT Country Information Report Sri Lanka 23 December 2021, 2.2 (DFAT Report)
·The applicant previously believed that if he fully disclosed his protection claims in Australia it would result in him being treated adversely by the Australian authorities; and, he would be deported to Sri Lanka where he feared being tortured by the Sri Lankan authorities. He also feared his wife and young children would also be treated adversely by the Australian authorities. He now wishes to provide further information to the Department and is remorseful for not fully disclosing his claims in the past. He never meant to mislead the Department but was sincerely scared and vulnerable
·In [Year], a friend of the applicant's, who he was playing sport with, suggested they join the LTTE. His friend advised him that the LTTE would ensure the Tamil community in Sri Lanka had freedom and rights. As the applicant was young and naïve, he believed what his friend told him about the LTTE being a positive influence for their community and as he was not studying at the time and had spare time, he decided to go with his friend and assist the LTTE. After approaching the LTTE, they stayed in their camp for approximately one month, assisted making LTTE uniforms and ran errands.
·After a month he was sent to a training camp where he undertook three months of training during which he learnt how to deal with certain situations for example to protect himself from ambush by the SLA. He was then sent to [Location 2] for a day where he was tasked with providing logistical support to LTTE members. He was then sent to the LTTE [Camp 3] where he was tasked with sentry duties to protect the camp from attack and prevent cadres from running away from the camp. The applicant continued this role until approximately [Year].
·In 1993 the applicant was involved in an operation defending his area for a week, from an attack by the SLA. The SLA heavily shelled the area killing many LTTE members. The applicant suffered a [Body part] injury and was taken to [hospital] where he stayed for three months receiving treatment. He was then transferred to an LTTE rehabilitation centre for three months.
·On return to [Camp 4] in [District 2] he was posted to the [Support] section of the LTTE due to his injuries. He then worked [doing a Job task] for the LTTE until 1997 in a [Workplace] in [Town 4], Jaffna. [Details redacted] Many LTTE members relied on the applicant's services to assist them. When the SLA took control of Jaffna they were forced to move the [Workplace] to [Town 5].
·[In] June 1997 the applicant decided he no longer wanted to support the LTTE as being involved with them had a serious impact on his physical and mental well-being. His uncle accompanied him to the SLA checkpoint in [District 2] town after which he and another boy who had surrendered were taken to [Camp 1]. He was detained by the SLA for three days, during which he was assaulted and tortured because the SLA wanted him to provide information about his involvement with the LTTE, other individuals affiliated with the LTTE and the strategic goals of the LTTE.
·The applicant was then handed over to the [District 1] police who transferred him to [Camp 2] in [District 1]. While at [Camp 2] the applicant was chained to a bed with the same boy who had surrendered with him and subjected to ongoing and severe torture. He was interrogated about his time in the LTTE. After a few days the applicant was to a rehabilitation camp at [Town 2] where he was detained for one year. In June 1998, he was released and returned to his home in [Village 1], [District 2].
·After his release the applicant worked as [an Occupation] for social events rather than for the LTTE. As a consequence of his continued work as [an Occupation], Tamil race and age, the Sri Lankan authorities suspected that he continued to assist the LTTE.
·In 1999, the applicant was rounded up and detained for seventeen days in [District 1] jail. The round up occurred as a consequence of a bomb explosion and the Sri Lankan authorities looking for suspects. The applicant was subsequently interrogated and the Sri Lankan authorities wanted him to provide information about individuals in his area who were affiliated with the LTTE. After this incident the applicant was continually summoned by the army to attend their offices in [District 2] during which he was asked questions about LTTE supporters in his area.
·Between 2002 and 2006, there was a peace agreement between the government and the LTTE. As a result the applicant's issues with the authorities subsided.
·From 2006, the applicant operated a shop which his wife looked after. The shop was attached to their home. The LTTE forced them to store [products] for them in this shop and as Tamils they felt compelled to abide by the demands of the LTTE. At the same time however, they lived in fear of the Sri Lankan authorities particularly because of his previous involvement with the LTTE.
·In 2008, while living in [Village 2] and running the shop, a boy that worked with them named [Mr A] was arrested by the Navy. Shortly after a group of men came to the shop asking questions about [products] they stocked. The applicant's wife was worried they were looking for the applicant and were examining his LTTE affiliation, given they asked about [products] the LTTE had forced them to stock. The applicant therefore fled the back of the shop to avoid them finding him. He and his wife then decided to move to [Village 3] in [District 2].
·On [Day 1] February 2010, when the applicant went to [District 2] market he was stopped by a man who was a member of the CID and who had interrogated and investigated the applicant in the past. He was aware of the applicant's LTTE involvement. He forced the applicant into a building upstairs and interrogated him about his LTTE connections and physically abused him. He wanted to the applicant to be an informant against the LTTE. At that time the SLA was dedicated their resources to identifying former LTTE members. He requested the applicant attend [Town 3] Checkpoint the following day. At the time he had stopped the applicant he wasn’t working, therefore he wanted the applicant to see him while he was on duty. The applicant was fearful of attending at the checkpoint and did not want to be an informant and knew he would be forced to be one if he attended.
·On [Day 1] February 2010, unidentified armed people went to his home looking for him. His wife was threatened by the group as they searched the home. They told her to tell the applicant to present himself to the CID office. On returning home, the applicant and his wife decided to leave the country because his life was in danger. They subsequently went into hiding at a friend's house and relatives' houses to avoid being found by the Sri Lankan authorities. In order to flee the country, they paid money to ensure they were not detected.
·Given his past involvement with the LTTE, his significant injuries including his [Body part] injuries and scaring on his body, the applicant would be immediately be treated with suspicion, detained and subjected to serious harm and torture on return to Sri Lanka. Many members of his community including the Sri Lankan authorities are aware of his previous ongoing involvement with the LITE. The fact that the applicant also fled the country and remained abroad for over seven years will result in him being treated with a high level of suspicion. The fact he also fled rather than assist the CID as requested will further place him at risk of harm. The Sri Lankan authorities continue to subject individuals who they deem to be affiliated with the LTTE to serious harm, to punish and coerce them. The authorities in the North of Sri Lanka remain very much unchanged since the conflict. They rely on laws such as the Prevention of Terrorism Act to supress the rights of the Tamil population and his family continually warn the applicant that there is no way he can return to Sri Lanka and live safely.
The applicant also provided a number of documents as follows:
·     Document from the Government Security Forces Officer dated [June] 1998 attesting to his detention on [June] 1997 and release from [Rehabilitation centre] at [Town 2] [in] June 1998;
·     Certificate from the Department of the Commissioner General of Rehabilitation dated [June] 1998 stating that the applicant has undergone rehabilitation at the [Rehabilitation centre], [Town 2] from [June] 1997 to [June] 1998;
·     Certificate from the International Committee of the Red Cross (ICRC) dated [August] 1999 certifying that the applicant was visited by the ICRC several times at the [Town 2] [Rehabilitation centre] and he was released on 5 June 1998. It states that the applicant was re-arrested and visited at [District 1] Counter Subversive Unit on [Days 1 and 2] June 1999 and released from there on [Day 3] June 1999.
Interview with the delegate
On 9 November 2017, the applicant attended an interview with the delegate. The Tribunal has listened to a recording of the interview. In the interview, the applicant provided further information about his claims. Where relevant, the Tribunal refers to this below.
In the interview, the applicant provided copies of two photographs. He claimed that one was a photograph of him in his LTTE uniform holding a gun and the other is a photograph of him with the [equipment] that he used in his role with the LTTE.
Post-interview submissions
On 24 November 2017, the applicant’s lawyers provided post-interview submissions in support of the applicants’ applications for SHEVs.
Relevantly, the submissions state that the applicant fears persecution in Sri Lanka for the following reasons:
·     due to his race as a Tamil;
·     due to his imputed political opinion arising from his involvement with the LTTE. This includes his claims that he was a member of the LTTE, that after he left the LTTE the authorities continued to show an interest in him and that he and his wife assisted the LTTE by storing [products] in their shop;
·     as a failed asylum seeker who has spent an extended period of time in a Western country;
The submissions go on to address a number of concerns raised by the delegate with the applicant during his interview relating to credibility. In particular, the submissions address the delegate’s concerns about the credibility of the applicant’s claim to have been a member of the LTTE given the applicant only raised this claim for the first time prior to the interview. The submissions also address the delegate’s concerns relating to the applicant’s claims about the authorities coming to his shop and the circumstances around his claimed arrest in 2010. It is submitted that if the applicant returned to Sri Lanka, the authorities would examine his background, detain him and subject him to interrogation to ascertain further information about his past and he would be at risk of serious or significant harm.
The submissions also refer to country information about the situation for the Tamil population since the end of the war. It is submitted that given the applicant’s profile, he remains at risk of serious harm in Sri Lanka, in particular due to his former association with the LTTE. The submissions refer to reports from Human Rights Watch and the United Nations about the ongoing use of torture by the authorities and the lack of respect for the rule of law. The submissions also refer to the ongoing use of the Prevention of Terrorism Act (PTA) and the military’s autonomy. It is submitted that a report by Freedom from Torture indicates that although the war has ended, Tamils are still at risk of torture and serious harm, particularly if they are considered to have had links to the LTTE. It is also submitted that the applicant meets the complementary protection criterion.
The delegate’s decision
On 28 November 2017, the delegate made his decision. As discussed above, the delegate began by setting out the details of the applicant’s claims and the findings made at each step of the process including the SHEV application.
The delegate accepted that the applicant is a Tamil from the north of Sri Lanka. The delegate accepted that the applicant was detained in a rehabilitation centre from 1997 until June 1998 and then again in 1999 for 17 days in [District 1] jail. However, the delegate did not accept that the applicant would be considered to have LTTE affiliations as a result. The delegate found that the circumstances of the applicant’s release in 1999 and again later indicated that he did not have an adverse profile with the authorities at the time or at the time he left Sri Lanka. The delegate did not accept that the applicant had a well-founded fear of persecution as a Tamil from the north of Sri Lanka or due to being from an area previously controlled by the LTTE.
The delegate accepted that the applicant was detained by the Sri Lankan army (SLA) from June 1997 to June 1998 but did not accept that the applicant had been involved in the LTTE in the way he claimed, as a sentry and then in the [Support] unit. Further, the delegate considered that even if the applicant was involved with the LTTE in the way he claims, he was rehabilitated and released, which indicates he was considered to have a minor role, to have been rehabilitated and no longer a threat. The delegate accepted that the applicant was coerced to dig bunkers for the LTTE and was injured in a shell explosion. The delegate found that the applicant’s profile would not be of interest to the authorities because he was not involved with the LTTE as claimed.
The delegate accepted that the applicant was detained in a round up after an explosion in [District 1] in 1999. The delegate considered that the fact the applicant was released after his relatives showed his certificate of rehabilitation to the authorities indicated that he did not have an adverse profile at that time. The delegate did not accept that the applicant was repeatedly asked to identify people from the LTTE after this incident because if the authorities considered he still held valuable information, he would not have been released at the time of the bomb explosion.
The delegate did not accept the applicant’s claim that he received adverse attention from the Criminal Investigation Division (CID) of the police in 2008 for storing goods for the LTTE in his shop. The delegate had various concerns about the credibility of aspects of the applicant’s evidence about this incident. The delegate also did not accept that the applicant sold his shop and home and fled to a different town as a result of this incident. The delegate also considered that the applicant’s release by a judge after attempting to travel to India by sea indicated that he did not have an adverse profile at the time.

In relation to the applicant’s claim that he received adverse attention from a member of the CID in 2010 at [District 2] market, the delegate found various aspects of this claim to be implausible, including that rather than arresting the applicant, the CID officer asked him to attend a checkpoint at a later time.
The delegate also had concerns about the credibility of the applicant’s evidence about obtaining his passport and that he enlisted the services of an agent to ensure he was able to depart Sri Lanka at the airport without incident.
The delegate found that the applicant would not face a real chance of serious harm as a returned failed asylum seeker and that his past rehabilitation, which occurred a long time ago, was indicative of him not having a perceived LTTE profile after his release in June 1998 and 1999. The delegate did not accept that the applicant’s children having Australian birth certificates would expose him to adverse attention on his return.
The delegate found that the applicant would not face a real chance of persecution now or in the foreseeable future if he returned to Sri Lanka and neither would the members of his family unit.
Evidence before the Tribunal
The review application
On 8 December 2017, the applicants lodged applications for review of the delegate’s decision with the Tribunal. They included a copy of the delegate’s decision with their applications for review.
Pre-hearing submissions and statement of the applicant’s wife
On 6 December 2022, the applicant’s lawyers provided extensive pre-hearing submissions to the Tribunal. It is submitted that the applicant fears harm for the following reasons:
·     Tamil race;
·     Imputed political opinion;
·     Returnee from the West/failed asylum seeker.
It is submitted that the applicant’s wife fears harm for the following reasons:
·     Tamil race;
·     Imputed political opinion;
·     Returnee from the West/failed asylum seeker;
·     Tamil woman.
The Tribunal notes that this is the first time in the context of the SHEV application that the applicant’s wife has raised protection claims of her own.
In terms of race and imputed political opinion, the submissions reiterate claims and evidence given in the past by the applicant about his involvement with the LTTE in Sri Lanka from [Year] until after his release from rehabilitation and then his subsequent short detention in 1999. The submissions reiterate the claims and evidence given by the applicant about his operation of a shop and being forced by the LTTE to store [products], and what happened as a result of this. The submissions also reiterate the applicant’s claims about being stopped by a member of the CID in 2010 and asked to attend a checkpoint, which led to the applicant and his wife and daughter going into hiding and then fleeing Sri Lanka. It is submitted that the applicant, and his wife by association, would be treated with a high level of suspicion if they returned to Sri Lanka and would be detained and subjected to serious and significant harm. It is submitted that the applicants’ chances of serious harm would be exacerbated by the length of time they have lived outside Sri Lanka, the fact that they fled when significant interest was shown towards the applicant by the authorities in 2010, the fact that they have claimed asylum in Australia and the likelihood that the authorities may be concerned that the applicant has spoken out about the mistreatment he faced in Sri Lanka and they would want to punish him for this. It is also submitted that as failed asylum seekers this will increase their risk of serious harm.
The submissions also refer to a great deal of country information on the situation for women in Sri Lanka and it is submitted that the applicant’s wife fears gender-based harm from the authorities as a result of the applicant’s history with the LTTE, and as a Tamil woman. The submissions refer to the current DFAT Report which discusses the situation for women in Sri Lanka and refers to sexual harassment being common and underreported, and violence against women, as well as the difficulties women can face in seeking assistance. It is submitted that the applicant’s wife’s fears are increased by her fear that she will be left vulnerable as a result of the applicant being detained or killed upon return to Sri Lanka. The submissions refer to country information from other sources on the situation for Tamil women such as the Immigration and Refugee Board of Canada.
The submissions go on to make specific comments about aspects of the delegate’s decision and why they disagree with a range of the delegate’s findings.
The submissions spend a great deal of time referring to country information about the continued use of torture by the authorities in Sri Lanka and the use of the PTA disproportionately against Tamils, as well as the overall gravity of the situation for Tamils in Sri Lanka, particularly if they are perceived to be affiliated with the LTTE, and how this puts the applicant at great risk. Sources referred to include the United States Department of State, the UK Upper Tribunal, Human Rights Watch, the United Nations High Commissioner for Human Rights and Amnesty International. The submissions also refer to Tamils being arrested for commemorating the war. It is submitted that it cannot be concluded that significant change has occurred in Sri Lanka and that Tamils continue to face persecution.
It is also submitted that if the applicants do not fall within the definition of refugee, they meet the complementary protection criterion because they face a real risk of significant harm.
The pre-hearing submissions were accompanied by a written statement of the applicant’s wife dated 12 July 2022 in which she states:
·     It is her understanding that prior to their marriage, her husband was a member of the LTTE;
·     She and her husband operated a shop from 2006 onwards. She worked in the shop. The LTTE forced them to store [products]. They felt they had no choice.
·     In 2008, a group of men came to the shop. She was concerned they were looking for her husband. He was able to escape without them finding him. They moved to [District 2] after this.
·     While in [District 2], her husband was approached by a member of the CID while at the market. He was worried about being forced to become an informant. He did not report to the CID as asked and so the CID came to their house. She was at home with their daughter. The CID searched the house and said her husband must report to them. She and her husband were very scared and went into hiding until they could make arrangements to flee the country.
·     If she is forced to return to Sri Lanka, she fears harm due to her Tamil race, imputed political opinion and gender. She is scared of being imprisoned and interrogated about her husband’s LTTE involvement, their motives for leaving Sri Lanka and why they stayed in Australia for so many years. The authorities harm and torture women to intimidate them.
·     She is worried her daughter will face gender violence.
·     She is worried her husband will be imprisoned and interrogated. If this happens, she is worried that she and her children will face harm from the authorities especially without male protection.
·     Presenting her children’s Australian birth certificates to the authorities will make it obvious that they have lived in Australia for over 10 years.
·     If they have to return to Sri Lanka, the authorities will interrogate them about various things and they will be at risk of torture and harm.
The hearings
The applicant and his wife appeared before the Tribunal on 16 December 2022 and 20 December 2022 to give evidence and present arguments. The third and fourth applicants did not attend the hearing, which was appropriate in the Tribunal’s view. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicants were represented in relation to the review and the representative attended the Tribunal hearings by telephone.
Post-hearing submissions
On 30 January 2023, the applicant’s lawyer provided post-hearing submissions. The submissions address the Tribunal’s concerns about the credibility of the applicant in light of differences in evidence given by the applicant during his immigration process about various aspects of his claims, including his late claim to have been a member of the LTTE. The submissions refer to various reasons why the Tribunal should not draw negative inferences about the applicant’s credibility as a result of this including trauma, the passage of time and consistent evidence given by the applicant’s wife.
The submissions also address the applicant’s risk profile and it is submitted that when his circumstances are assessed cumulatively, the applicant would be at risk of serious harm upon return to Sri Lanka. It is submitted that the applicant’s attendance at Heroes Day commemorations in Australia will further enhance his profile. The submissions refer to country information from the Immigration and Refugee Board of Canada about the risk to Tamils who are presumed to have an affiliation with the LTTE and an interview with a person from the Tamil Refugee Council in Australia about the ongoing repression of Tamils in Sri Lanka. The submissions reiterate previous submissions about the reasons why the applicant will face a real risk of serious harm if he returns to Sri Lanka.
The submissions respond to concerns raised by the Tribunal in the hearing about the applicant’s wife’s claims that she would face gender-based harm in Sri Lanka. The submissions refer to the DFAT Report and what is says about the situation for female headed households and harassment of women seeking information on missing family members, particularly those connected to former LTTE members. The submissions also refer to information from the Immigration and Refugee Board of Canada about difficulties faced by Tamil women in Sri Lanka and a report from the United Nations Office of the High Commissioner for Human Rights and submit that this information has a broader application to Tamil women generally rather than specific cohorts of Tamil women as raised by the Tribunal in the hearing. It is submitted that the authorities are not held accountable for their actions and have no regard for women and that women are not supported to speak out about issues they face. It is submitted that based on the applicant’s wife’s personal circumstances her fear of gender-based harm is genuine and well-founded, and that this is supported by the DFAT Report.
It is submitted that the applicants cannot relocate within Sri Lanka, including to Colombo, because they face the same risk of harm wherever they live. The submissions also request that in the event the Tribunal finds that the applicants are not owed protection, that their matter be referred to the Minister for consideration because unique and exceptional circumstances exist, including the fact that the applicant’s son is an Australian citizen and him being separated from the rest of his family would cause irreversible harm and continuing hardship.
The submissions also attached correspondence dated 13 March 2014 to the applicant, his wife, eldest daughter and son informing them that their personal information may have been accessible online for a short period of time in February 2014 on the Department’s website as a result of an error inadvertently made by the Department. The applicant had raised this in the hearing but had not previously provided any evidence to indicate that he or anyone in his family had been affected by this ‘data breach’. The submissions state that their involvement in the data breach would further highlight their status as failed asylum seekers.
Nationality
The applicants claim to be citizens of Sri Lanka. The applicant provided to the Department documentary evidence of his identity and citizenship, including copies of the bio-data page of his Sri Lankan passport issued [in] 2006 and a copy of his Sri Lankan birth certificate. The delegate also accepted that the identity of the applicant’s wife and daughters was as claimed and found that they were members of the same family unit as the applicant. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of Sri Lanka. The Tribunal finds Sri Lanka is their receiving country for the purpose of assessing their claims for protection. The Tribunal also finds that the second, third and fourth applicants are members of the same family unit as the applicant as defined in s 5(1) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
A Safe Haven Enterprise visa is a class of temporary protection visa, the purpose of which is to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia: ss 35A(3A) and (3B).
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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Analysis, reasons and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the Tribunal hearings, the applicant confirmed that he has had legal assistance with his visa application processes since he arrived in Australia in 2010. He said that information he did not give in 2010 he later gave to his lawyer.
During the hearings, the Tribunal discussed with the applicant his family, education, employment, his residential, travel and migration history, his political views, his involvement with the Tamil community in Australia, the problems he experienced in Sri Lanka and why he fears returning there. The Tribunal has concerns about discrepancies in aspects of the applicant’s evidence he has given at different times about some of the claimed events in Sri Lanka. This was in contrast to other aspects of the applicant’s evidence which were quite clear and consistent. These differences raised concerns for the Tribunal about the credibility of aspects of the applicant’s claims.
During the hearings, the Tribunal discussed with the applicant’s wife her family, residential and employment history, travel and migration history, involvement with the Tamil community in Australia, her political views, the problems she experienced in Sri Lanka and why she fears returning there. While the evidence given by the applicant’s wife corroborated aspects of the applicant’s evidence, due to the Tribunal’s concerns about discrepancies in the applicant’s evidence given over time about some of the claimed events, this raised concerns for the Tribunal about the credibility of some of the evidence given by the applicant’s wife. As discussed below, the Tribunal does not consider that her corroborative evidence to be sufficient to overcome the Tribunal’s concerns about discrepancies in her husband’s evidence. The Tribunal also has concerns about whether aspects of the applicant’s wife’s claims are supported by country information in the way she claims.
In considering the applicants’ claims, the Tribunal has taken into account all the country information provided by them in support of their claims, as well as other country information including the most recent DFAT Report, and their lawyers’ submissions. Where necessary, the Tribunal refers to the country information and the submissions below.
The applicant’s claim to have been a member of the LTTE
As referred to above, the applicant first made the claim that he had been a member of the LTTE in a written statement dated 31 October 2017 provided in support of this SHEV application. He states that he did not raise this claim previously because he was worried about being deported to Sri Lanka.
His written claims are set out in detail above, but in essence, he claims that in [Year], he and a friend decided to assist the LTTE. He was young and naïve at the time. They went to an LTTE camp for about one month and assisted with making uniforms and running errands.
After about one month, the applicant was sent to a training camp and completed about three months’ training. He was sent for one day to [Location 2] to provide logistical support to LTTE members and then returned to the LTTE base camp, [Camp 3], where he worked as a sentry. As a guard, his role was to protect the camp from attack and to stop cadres from running away. He did this role until approximately [Year]. In [Year], he was involved in an operation called [Operation] for about one week. His [Body part] was badly injured and he was taken to [Hospital] for treatment. He was in hospital for around three months and then in rehabilitation for around three months. After that, his commander decided that because of the applicant’s injuries he needed to change roles. The applicant was posted to the [Support] section of the LTTE. From 1993 to 1997, he worked for the LTTE [doing a Job task]. He worked in a [Workplace] in Jaffna. When the SLA took control of Jaffna, the [Workplace] moved to [Town 5].

In June 1997, the applicant decided he no longer wanted to support the LTTE. It had made a serious impact on his physical and mental health. His uncle came with him and he surrendered to the SLA at the checkpoint in [District 2] town. The SLA took him to [Camp 1]. He was detained there for a few days and assaulted and tortured. The SLA wanted him to provide information about the LTTE. He was handed over to the [District 1] police who transferred him to [Camp 2] in [District 1]. He was kept there for a few days and tortured and interrogated. He was then sent to a rehabilitation camp in [Town 2]. He was detained there for one year. In June 1998, he was released and went back to his house in [Village 1], [District 2].
In his interview with the delegate, the applicant explained that he joined the LTTE when he was young and didn’t have much knowledge. In 1997, he left and surrendered with the help of his uncle. Also, he had met his wife by this stage and wanted to leave the LTTE. The applicant explained what happened to him after he surrendered and the types of questions he was asked during his detention. The delegate put to the applicant that given he surrendered and told the authorities about his role and was released, this indicated they were satisfied he had a minor role and did not consider him to have a significant profile. The applicant responded that he had been living with fear and asked why they would have tortured him if he was not a significant person. As noted above, while the delegate accepted the applicant had been detained for one year, the delegate did not accept the applicant’s claim about his involvement with the LTTE and considered it had been made in an effort to enhance the applicant’s claims for protection.
In the Tribunal hearing, the applicant gave evidence that after he finished school, in [Year] he went to the LTTE and was a member from [Year] until 1997. He used to play ball with a boy who lived nearby and there were lots of LTTE people in his area and so they decided to join. He said he was young and immature at the time. He said when he started, he was [Age] and he received three months training. He was on sentry duty and had to ensure nobody from outside came into the camp and he had to protect those who were doing training. He did this from [Year] to 1993 at [Camps 5 and 6]. Then he went to [Location 3]. He never captured or killed or harmed anyone in his roles with the LTTE. At [Location 3], he had to supply water. He had a weapon but didn’t shoot it. This is the only battle he was involved with. Soon after, the SLA came and his [Body part] was injured. After he was injured, he spent time in [hospital] and then the LTTE medicine section took care of him. After that he went to the [Town 5] district and was in the [Support] unit from 1993 to 1997.
In the [Support] unit, his job was to [do a Job task]. The applicant decided to leave the LTTE because his [Body part] had been injured and he felt that he had stayed long enough. He didn’t have the opportunity to see his relatives and he had fallen in love.
The Tribunal asked the applicant about the circumstances around him leaving the LTTE. The applicant explained that he told the two LTTEs in charge of the [Support] unit and he gave them a letter saying he was going to leave. His boss asked him why, and he said he wanted to be with his mother and referred to the problem with his [Body part]. There were no issues with his boss. The applicant explained that he surrendered to the SLA because if he had simply returned to [District 2] the authorities would have identified him and thought he was in the LTTE and shot him. He wanted to be with his family and siblings, so with his uncle’s help, he surrendered to the CID and told him when he joined the LTTE he did it without much knowledge and now he has come out of it, but they didn’t believe him. After his uncle helping him surrender, he was taken to [Camp 1] and then to the rehabilitation camp at [Town 2]. He was there from June 1997 to June 1998 and then released.
The Tribunal put to the applicant its concern that he had only raised this very significant claim late in the process of his visa application and this raised a concern about whether it was true. The applicant responded that he had been in jail in Sri Lanka and when he came to Australia he didn’t want to experience that again. He was afraid and so he did not tell about having been in the LTTE, but later he realised that he had to tell.
Despite the lateness of raising this significant claim about being a member of the LTTE and the delegate not accepting it, the Tribunal is prepared to accept that the applicant was a member of the LTTE from [Year] to 1997 and that he was involved in the way he claims. The Tribunal found the applicant’s evidence about his involvement to be largely consistent, compelling and given in a manner which suggested he was speaking from personal experience. He was able to explain and reflect on what it was that led him to join the LTTE, why it was that he decided to leave and explained how he went about doing this, which the Tribunal found plausible. The Tribunal also did not have the sense that the applicant was trying to embellish or exaggerate his level of involvement with, or commitment to, the LTTE. He has provided some photographs which the Tribunal accepts as genuine, as well as his rehabilitation certificate and certificate from the ICRC which is consistent with his oral evidence.
Based on the evidence before it, the Tribunal accepts that the applicant joined the LTTE in [Year]. The Tribunal accepts that he was a young and naïve at the time and he did not join due to any great ideological commitment to the LTTE cause. The Tribunal accepts that he was involved in making uniforms, received some training, and worked as a sentry until 1993. The Tribunal accepts that he was sent in a support role to [Operation] and this is the only battle he was involved in. The Tribunal accepts that he had a weapon but never used it and that he never harmed anyone during his involvement with the LTTE. The Tribunal accepts that the applicant’s [Body part] was injured shortly after he attended [Operation] and he spent some months in hospital and rehabilitation. The Tribunal accepts that due to his injury, in 1993 he was assigned to the [Support] unit of the LTTE where he [did a Job task]. The Tribunal accepts he did this until 1997 when he decided to leave the LTTE because he wanted to be with his family and he had fallen in love. The Tribunal accepts that he did not face problems from the LTTE due to his decision to leave. The Tribunal accepts that the applicant surrendered to the CID in [District 2] with the help of his uncle, after which time he was detained and interrogated and then spent one year in the [Rehabilitation centre] at [Town 2] and was released in June 1998.
The applicant’s claim to have been arrested in 1999 and pressured to help the CID
In his 2010 statutory declaration, the applicant claims that in 1999, he was arrested again as an alleged supporter of the LTTE and spent 17 days in [District 1] jail. He was released without being convicted of anything. After that time, he was summoned several times by the army to attend their offices in [District 2] to answer questions about LTTE supporters. Each time he explained he did not know anything.
In his RSA interview, the applicant claimed that after he was released in 1998, he was called in for questioning by the CID and asked to go to LTTE areas and identify LTTE members. He did not agree to do this. He was also arrested once and released the same evening when the army caught him with a video camera. In 1999, there was an explosion and the army rounded people up and took them to [Location 1]. The applicant was then sent to [District 1] and handed over to police. He was tortured. At the end of his detention, he was taken to a court, given a letter and then released. He did not have any problems from 2001 to 2006.
In his IMR interview, the applicant did not mention the 1999 arrest, but he said that between 2001 and 2003 he was hassled by the CID who wanted him to come to a checkpoint at [Town 3] (on the way to Vanni, about two miles from where he lived at [Location 4]) on three consecutive Sundays to inform on LTTE people. He was scared and agreed to do this but then he did nothing. He did not have any problems from 2003 to 2006.
In his statutory declaration dated 16 December 2016, the applicant claims that in 1999 he was arrested again as an alleged supporter of the LTTE and spent 17 days in [District 1] jail. He was released without being convicted of anything. After that, he was summoned several times by the army to attend their offices in [District 2] to ask him questions about LTTE supporters. On each occasion he explained he did not know anything. From 2002 to 2006 there was a ceasefire.
In his statutory declaration dated 31 October 2017, the applicant claimed that he was rounded up and detained in [District 1] jail for 17 days after a bomb went off and the authorities were looking for suspects. He was interrogated by the authorities who wanted him to provide information about LTTE affiliates in his area. After that time, the applicant was continually summoned by the army to attend their offices in [District 2]. They would continue to ask him questions about LTTE supporters in his area. Between 2002 and 2006 there was a peace agreement and he did not have issues with the authorities.
In the interview with the delegate, the applicant gave evidence that he was detained in 1999 after a bomb blast in [District 1]. His mother and grandfather came to where he was being held and showed the letter from the [Town 2] rehabilitation centre and after showing that, the applicant was released. He was brought to the courts and given a letter which said he was released. After being released, the CID wanted him to identify LTTE people and he refused, which is why he has white van issues and other problems. Every two or three weeks they asked him to come to a checkpoint. The last time he was questioned by them was in 2001. In 2002 to 2006 he had no problems.
In the Tribunal hearing, the applicant gave evidence that after the bomb explosion in 1999, he and some others were rounded up and he was held in jail for 17 days. He told his captors that he had been in rehabilitation and had a letter. His mother brought the letter, then the applicant was taken to court and released. The Tribunal put to the applicant that it was prepared to accept that he was jailed for 17 days and then released. The Tribunal also put to the applicant that it might find this indicated he was not considered to be a person of concern to the authorities at that time due to his past LTTE activities and his rehabilitation was considered successful, otherwise they would not have released him. The applicant responded that because of his past LTTE involvement they repeatedly wanted to question him and were suspicious of him.
The applicant also gave evidence that after his release from jail, the army and CID asked him to share information with them about LTTEs but he would not do it. He could not remember how many times he was approached for information but he said they asked him to come to the checkpoint and point out LTTEs. When asked whether he ever attended the checkpoint at their request he said he could not remember. He then changed his evidence and said he did attend when asked to but he could not remember how many times. They asked him to go to Vanni and get information on LTTE people and pass it back to them but he did not do it. When asked whether he ever gave them information about the LTTE he said he did not, because the LTTE would have shot him if he had done that. The Tribunal asked the applicant whether there were any consequences for him due to refusing to provide information. He said the authorities came searching for him and wanted to abduct him so he had to be careful. They stopped asking him to go to the checkpoint sometime around or before 2002. The Tribunal put to the applicant that even if it accepted his claim about this, his evidence might suggest that the authorities were not particularly interested in him because they could easily have rearrested him or pressured him in other ways for not cooperating, but they did not. He responded that they kept looking for him from time to time maybe thinking he was continuing to maintain relations with the LTTE.
The Tribunal has considered the applicant’s evidence about being rounded up after a bomb blast in [District 1] and held in jail for 17 days and then released from jail and by the court after showing his rehabilitation letter. The applicant’s evidence about this has been relatively consistent and specific and the Tribunal is prepared to accept that this event occurred as he claims. The Tribunal also finds that given the timing and circumstances of the applicant’s release, he was not considered to be a person of concern to the authorities at that time due to his past LTTE activities and his rehabilitation was considered successful.
In relation to the applicant’s claims to have been summoned by the army or CID to identify or inform on LTTE members, the Tribunal has various concerns. As set out above, over time the applicant has given different evidence about how many times or how often he was approached, ranging from several times, to three consecutive Sundays, to every two to three weeks, to continually, to not being able to remember. He has also given different evidence about where he was asked to attend, namely the army offices in [District 2] or a checkpoint/the checkpoint at [Town 3]. He told the Tribunal that he could not remember whether he ever attended the checkpoint at the army/CID’s request and then changed his evidence to say that he did attend but could not remember how many times. These changes in the applicant’s evidence about how often he was approached to provide information and where he was required to attend raise concerns for the Tribunal about the credibility of his claims. The Tribunal acknowledges that the passage of time can cause memories to fade, but it considers the differences in the applicant’s evidence in this instance to be too great to be explained in this way.
The applicant has given evidence that he refused or failed to provide information to the army/CID when approached. He has given different evidence about whether he suffered any consequences because of this. At times, the applicant has not referred to any repercussions as a result of him not providing information or cooperating, but at other times he has referred to having problems because he would not help and in the Tribunal hearing, he claimed the authorities had been searching for him and wanted to abduct him. These differences in the applicant’s evidence also raise concerns for the Tribunal about his credibility. In the Tribunal’s view, if the authorities were genuinely interested in the applicant assisting them at this time and considered him to have information of value as a former LTTE member, his failure to assist would have resulted in them taking action against him at the time, such as arrest and detention, but according to his evidence this did not happen.
For all these reasons explained above, the Tribunal does not accept the applicant’s claim that the army or CID approached him after his release from rehabilitation or jail to provide information about LTTE supporters. It follows that the Tribunal also does not accept that he refused or failed to cooperate and to provide information when asked.
The Tribunal accepts the applicant’s evidence that from around 2001 until 2006 he did not have any problems with the authorities.
The applicant’s claim about storing [products] for the LTTE in his shop and attempted escape to India
In his statutory declaration dated 23 April 2010, the applicant does not refer to this claim.
In his RSA interview, the applicant did not refer to this claim either. He stated that the CID and other groups came looking for him three or four times between 2003 and 2009. He also stated that in 2009, he sold his house in [Village 2] and moved to a rental property in [Village 3] because white vans came in search of him and the CID and other groups came because he wasn’t helping them.
In his IMR interview, the applicant gave evidence that in 2003 after he and his wife married they moved to [Village 2], [District 2] and built a shop. In 2007, his uncle called him to say he had to help the LTTE by storing goods in his shop. A man came to their house and acted forcefully in telling them they had to help. The applicant was scared but was forced to agree for his uncle’s sake. When the first load of goods was delivered, the applicant and his wife saw that they were [products] like [examples]. They stored the goods until 2008 and then in October of that year the man who had insisted they cooperate was abducted. His name was [Mr A]. They found out about the abduction from a newspaper report and a news item on television. About one week after [Mr A] was abducted, the CID came to their house asking questions. The applicant was not there when they came but they made threats to his wife. They were scared. He decided they could not live there anymore and they would go to India. They sold the house to a relative for a cheap price in about November 2008 and tried to escape to India. A friend arranged for them to take a boat from [District 2]. While they were waiting to go to the beach through a coconut farm, armed Navy personnel stopped them. The Navy people kicked and hit them and took them in a truck to the police. The applicant paid a bribe to the police and they were released.
In his statutory declaration dated 16 December 2016, the applicant states that in 2006 he operated a shop which his wife looked after. The LTTE forced him to store [products] for them in the shop.
In his written statement dated 31 October 2017, the applicant states that from 2006, the applicant operated a shop which his wife looked after. The shop was attached to their home. The LTTE forced them to store [products] for them in this shop and as Tamils they felt compelled to abide by the demands of the LTTE but the applicant was afraid because of his previous involvement with the LTTE. In 2008, while living in [Village 2] and running the shop, a boy who worked with them named [Mr A] was arrested by the Navy. Shortly after his arrest, a group of men came to the shop asking questions about [products] they stocked. The applicant's wife was worried they were looking for the applicant and were examining his LTTE affiliation, given they asked about [products] the LTTE had forced them to stock. The applicant fled through the back of the shop to avoid them finding him. He and his wife then decided to move to [Village 3] in [District 2].
In the interview with the delegate, the applicant gave evidence that in 2008, the people who had been involved with storing the goods were caught and taken by a white van. The CID came to his shop looking for him and his wife spoke to them and he went behind the shop. He thinks the CID were looking for him because they were angry with him because he would not identify people and also because they were supplying infant milk when there was a shortage. He said the CID came three or four times to find him and he ran behind the shop to be safe. There were 30 bags kept in the shop. It was a boy called [Mr A] who transported them and he got caught. In 2009, they sold the shop and house together and moved to [Village 3]. The applicant was unable to give a clear timeframe of how long it was between the CID coming to find him and when they sold the house and shop. He said that after selling, they tried to go to India and got caught on the seashore. They paid money to the Navy. They went to a judge, got approval and were released.
In her statement dated 12 July 2022, the applicant’s wife states that she and her husband operated a shop from 2006 onwards. She worked in the shop. The LTTE forced them to store [products]. They felt they had no choice. In 2008, a group of men came to the shop. She was concerned they were looking for her husband. He was able to escape without them finding him. They moved to [District 2] after this.

195. As well as considering the applicant’s wife’s claims individually, the Tribunal has considered her accepted claims on a cumulative basis. That is, the applicant’s wife is a [Age]-year-old Tamil woman from the north of Sri Lanka, she married the applicant in 2003, she and the applicant had a grocery shop from around 2003 to 2009, she and her family unsuccessfully tried to travel to India in 2008 or 2009 and were intercepted by the Navy and paid a bribe to be released, and after this she lived with her family in [Village 3] until leaving Sri Lanka, she was able to obtain a passport, she departed Sri Lanka legally on her passport from the airport in Colombo, she has attended Heroes Day twice in Australia, she attends Tamil community events, she is not involved in Tamil separatist activities in Australia, and she would attend Heroes Day commemorations in Sri Lanka and would do so in a peaceful way. Considering the applicant’s wife’s claims on a cumulative basis, for the reasons discussed above, the Tribunal finds she would not face a real chance of serious harm arising from these circumstances if she returned to Sri Lanka in the foreseeable future.
196. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to Sri Lanka now or in the foreseeable future that any of the applicants faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
197. Accordingly, the Tribunal is not satisfied that any of the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied any of the applicants has a well-founded fear of persecution, it is not satisfied that any of the applicants meet the definition of refugee in s 5H(1). As the applicants do not meet the definition in s 5H(1), the Tribunal is not satisfied any of them is a person in respect of whom Australia has protection obligations under s 36(2)(a).
198. In making its decision, the Tribunal acknowledges the fact that in 2011, the IMR reviewer found that the applicant and his wife were persons in respect of whom Australia has protection obligations and that they met the criterion for a protection visa, and that the third applicant was a member of the same family unit. However, for the reasons explained above, having considered the applicants’ claims, the Tribunal is not satisfied that if the applicants return to Sri Lanka now or in the foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Do the applicants satisfy the complementary protection criterion?
199. As the Tribunal has found that the none of the applicants meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicants meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
200. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[41] for the same reasons as those set out above, the Tribunal finds that none of the applicants face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[41] MIAC v SZQRB [2013] FCAFC 33.
Conclusion

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

202. In their post-hearing submissions, the applicants have requested that in the event the Tribunal finds they are not owed protection, their matter be referred to the Minister for consideration. Section 417 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if this Minister thinks it is in the public interest to do so. The applicant requests that in light of his family’s unique and exceptional circumstances, the Minister intervene to permit the applicants to remain in Australia.
203. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 345, s 351, s 417 and s 501J)’ and has decided to refer the matter for consideration for the following reasons.
204. The Tribunal notes the exceptional circumstance:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

205. The Tribunal notes that the applicant’s son, [Master B], is a [Age]-year-old Australian citizen. In the post-hearing submissions, it is submitted that [Mr B] was born in Australia, grew up here, attends school and has a strong network of friends. He resides with his parents and is dependent on them both emotionally and financially. If his parents and siblings were forced to return to Sri Lanka, he would either have to choose to be separated from his family, which would be extremely difficult and adversely affect his mental health and well-being, or he would have to travel to Sri Lanka where he would face insecurity and hardship. As an Australian citizen, he should not be forced to reside abroad in order to remain with his parents and siblings. The applicants who are members of [Master B]’s family would also face harm and hardship if they were forced to return to Sri Lanka and live separately from [Master B]. The post-hearing submissions also refer to Australia’s obligations under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
206. The Tribunal agrees that in these circumstances, [Master B], as an Australian citizen, would suffer serious, ongoing and irreversible harm and continuing hardship if his family were broken up and his parents and at least one of his siblings had to return to Sri Lanka.
207. The Tribunal also notes the evidence provided by the applicant and his wife to the Tribunal about their personal circumstances in Australia. They have been in Australia for over 12 years. All three of their children have grown up in Australia (the eldest was [Age] years old when she arrived). The applicant has worked at a [Workplace] in Sydney for the last six years as [an Occupation]. He speaks moderate English. The applicant’s wife works at a [company] and also speaks moderate English. As referred to above, the applicant and his wife gave evidence that they are focused on work, their home life and their children. The applicant gave evidence, which the Tribunal accepts, that he prioritises work over attending Tamil commemorative events and is not involved in Tamil separatist activities or politics. His children attend Tamil school on weekends to stay in touch with their culture. The applicant gave evidence that they have no relatives in Australia but they have made friends here. Based on the evidence before it, the Tribunal considers that the applicants are making genuine efforts to integrate themselves into the Australian community.
DECISION
208. The Tribunal affirms the decision not to grant the applicants protection visas.
Rachel Da Costa
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 2506

27 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction