1731022 (Refugee)

The applicants, citizens of Sri Lanka, sought protection visas. The delegate refused their applications, finding that Australia did not owe them protection obligations. The applicants, including the first applicant, his wife, and their eldest daughter, arrived in Australia by boat in March 2010. Their son and another daughter were born in Australia. The first applicant’s initial claims involved being a suspected supporter of the LTTE, having been detained, questioned, and beaten, and pressured to inform on others. Later claims described him as a low-level, non-combatant member who was wounded, surrendered, rehabilitated, and released. The wife and eldest daughter also expressed fears of harm due to gender-based discrimination, harassment, or violence, alongside general economic and political unrest in Sri Lanka.

The primary legal issue before the court was whether the applicants were persons in respect of whom Australia had protection obligations, as defined by section 36(2)(a) of the Migration Act 1958 (Cth) (refugee criterion) or section 36(2)(aa) (complementary protection criterion). This involved assessing the credibility of the applicants' claims, particularly given inconsistencies in the evidence provided over time, and considering whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, they would suffer significant harm. The court was required to consider country information relevant to the situation of Tamils returning to Sri Lanka, especially those with past associations or suspected associations with the LTTE.

The court found significant concerns regarding the credibility of aspects of the first applicant's evidence due to discrepancies in claims made at different times. While the wife's evidence corroborated some of the applicant's claims, these discrepancies raised doubts about the reliability of her corroborative evidence. The court noted that the first applicant had legal assistance throughout his visa application processes and had provided information to his lawyers that he had not previously disclosed. Despite the delegate's refusal, an Independent Merits Review in 2011 had found the applicants' claims credible, accepting their fear of persecution based on their Tamil ethnicity from the north of Sri Lanka, past involvement with the LTTE under duress, and the risk of detention and torture by Sri Lankan authorities. However, the current review focused on the delegate's subsequent decision in 2017, which was affirmed by the Tribunal.

The Tribunal affirmed the delegate's decision to refuse the protection visas. This outcome was based on the Tribunal's assessment of the applicants' credibility, particularly the inconsistencies in the first applicant's evidence, which cast doubt on the reliability of his claims and, by extension, his wife's corroborative evidence. The Tribunal concluded that, despite the earlier positive review, the current evidence did not establish that Australia owed protection obligations to the applicants.