1731591 (Refugee)

[2022] AATA 4566

1731591 (Refugee) [2022] AATA 4566 (24 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Beatriz Teresa Stotz (MARN: 0212699)

CASE NUMBER:  1731591

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Rachel Da Costa

DATE:24 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 October 2022 at 10:48am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil ethnicity – imputed political opinion – member and/or supporter of the LTTE – links to LTTE members through brother-in-law – land disputes between Tamils and the Sri Lankan government – positive Independent Protection Assessment (IPA) assessment – particular social group – failed asylum seeker – activities in Australia – involvement with the Tamil Civic Centre (TCC) – ban on six Tamil diaspora groups and 316 individuals lifted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 24 March 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

   CLAIMS AND EVIDENCE

   Background and migration history

3. In his protection visa application form, the applicant provides the following information. He was born in [City 1], Eastern Province, Sri Lanka in [year]. He speaks, reads and writes Tamil. He speaks Hindi and speaks and reads English. He got married in India in 2001. He is in contact with relatives overseas and speaks to them almost every day. His father and one sister are deceased. In Sri Lanka he has one brother. In India, he has his mother and another sister. He has a brother living in [Country 1].

4. From [year] to 1971, he lived in [City 1], Eastern Province, Sri Lanka. From 1971 to 1990, he lived in [Village 1], [District 1], Sri Lanka. He completed primary school and secondary school in [Village 1], [District 1], Sri Lanka.

5. From 1983 to 1990, the applicant worked as an apprentice [Occupation 1] in [Village 2], [District 1], Sri Lanka.

6. From 1990 to 1994, he lived in India in a refugee camp in [Town 1]. He was self-employed and worked for a [Occupation 1] subcontractor in [Town 1].

7. From 1994 to September 2000, he lived in [Country 2] and worked as a [Occupation 1] at [employer].

8. From September 2000 to April 2001, he lived in Colombo, Sri Lanka.

9. From April 2001 to April 2003, he lived in [Town 1], India and worked as a [Occupation 1].

10. From April 2003 to May 2006, he lived in [Village 3], [District 1], Sri Lanka. He was self-employed working as a [Occupation 1] subcontractor in [Town 2]. In 2005, he completed a [Occupation 1] Certificate at [education provider] in Colombo, Sri Lanka.

11. In May 2006, he was detained by the army in [Town 3], Vavuniya District, Sri Lanka. From May 2006 to July 2006, he lived in [Suburb 1], [City 1], Eastern Province, Sri Lanka. From July 2006 to August 2006, he lived in [Suburb 2], Colombo, Sri Lanka.

12. From August 2006 to April 2011, he lived in [Town 1], India and worked as a [Occupation 1].

13. He left Sri Lanka legally on his Sri Lankan passport from Colombo Airport [in] July 2006. His passport [in] 2008. He arrived in Australia at the Cocos Islands by boat as an unauthorised maritime arrival [in] April 2011. He previously had a fake Indian passport which he did not use.

14. He lived on Cocos Island and Christmas Island in immigration detention from April 2011 to April 2012. Since then, he has been living in Sydney.

15. The applicant attached a number of documents to his protection visa application form relating to his identity, including a copy of his birth certificate and the bio-data page from his Sri Lankan passport issued [in] 2003.

16. The applicant’s visa application history since arriving in Australia, as extracted from documents on the Department and Tribunal files, is as follows:

    ·     [April 2011]: applicant arrived in Australia as an unauthorised maritime arrival

    ·     8 May 2011: applicant attended entry interview

    ·     16 June 2011: applicant lodged his application for a Protection Obligations Determination

    ·     22 June 2011: applicant attended Protection Obligations Evaluation (POE) interview

    ·     11 August 2011: POE outcome negative; referred for Independent Protection Assessment (IPA)

    ·     4 July 2012: IPA outcome positive

    ·     25 November 2015: applicant advised by the Department that he could make a valid application for a Temporary Protection Visa (subclass 785) (TPV)

    ·     24 March 2017: applicant lodged his application for a TPV

    ·     16 November 2017: applicant attended Departmental interview with delegate

    ·     24 November 2017: delegate’s decision not to grant the applicant a TPV

    ·     14 December 2017: application for review lodged with the Tribunal

    Evidence before the Department

17. By way of explanation, the applicant provided an initial version of events in a statutory declaration made on 17 June 2011 provided for his POE. He reiterated a similar version of events at his POE interview. He then provided a different, and more detailed, version of events in a statutory declaration made on 3 February 2012 provided for his IPA review and explained this new version of events in the IPA interview, as well as his reasons for having previously given a different and incomplete version of events. When he applied for his TPV on 24 March 2017, he attached a copy of his statutory declaration made on 3 February 2012 as his statement of claims. On 16 May 2017, he provided a further statement with additional claims in support of his TPV application. The content of these documents and information provided by the applicant at his interviews at the POE, IPA and with the delegate are all set out in detail in the delegate’s decision. For clarity, the Tribunal has set out below the applicant’s claims and the findings made at different stages of the assessment process in chronological order referring to the source document, rather than simply reproducing the delegate’s decision.

    Statutory declaration in support of Protection Obligations Evaluation

18. In a statutory declaration declared on 17 June 2011, and as reflected in the delegate’s decision, the applicant makes the following claims:

    ·     He resided in Sri Lanka all his life;

    ·     His wife fled to India with his parents in 2006. The applicant could not follow them because he had to care for his land and make money to support his family;

    ·     He eventually fled Sri Lanka because he feared for his life;

    ·     He was arrested and detained by the Sri Lankan army in 2009. He was accused of being a member of the LTTE because he had been doing work as a [Occupation 1] for an organisation that was contracted by the LTTE. He was injured during his detention but was eventually released after paying a bribe. He has been subject to numerous inquiries by the Sri Lankan army since then but has mostly avoided punishment.

    ·     Around one month before fleeing Sri Lanka he ran into a man called [Mr A] who threatened to kill him as a result of their previous dealings. He thinks [Mr A] may have been responsible for his arrest in 2009, but he is not sure.

    ·     He knows [Mr A] because [Mr A] sexually abused the applicant’s cousin. At the time, [Mr A] was a member of the LTTE[1]. Now he is a member of the Karuna group who are aligned with the Sri Lankan army.

    ·     As a Tamil man, he feared becoming a victim of the Sri Lankan army and associated paramilitary groups.

    ·     He fears that if he returns he will be detained and killed.

    ·     He fears being harmed because the Sri Lankan authorities will suspect him of being a member and/or supporter of the LTTE because of his Tamil ethnicity. He also believes he will be harmed because he departed Sri Lanka illegally and has informed the Australian authorities of the atrocities committed against Tamils in Sri Lanka.

    [1] The LTTE is the Liberation Tigers of Tamil Eelam, a militant group which supported Tamil statehood. See DFAT Country Information Report Sri Lanka 23 December 2021, 2.2.

19. In an undated submission in support of the applicant’s application for a POE, the lawyers representing him at the time provided country information in support of his application. The country information refers to various online news articles and reports from 2009 and 2010 about the ongoing violence towards Tamils in Sri Lanka, particularly facing young Tamil men. The applicant also submitted the required forms containing background information about himself and his family.

    Protection Obligations Evaluation

20. On 11 August 2011, the POE officer made his decision. In his decision, the findings of which are set out in the delegate’s decision, he noted that there were no material discrepancies between the applicant’s responses in his entry interview and his POE interview. However, he then noted that information had become available through a Five Country Check which showed the applicant had used the name [Alias 1] and an Indian Passport to apply for a visa to travel to [Country 1] while in Chennai, Tamil Nadu, India.

21. In his decision, the POE officer referred to the applicant’s claims in his statutory declaration declared 17 June 2011. He also referred to country information discussed with the applicant in his interview that indicated the United Nations High Commission for Refugees (UNHCR) has said it was safe to return to Sri Lanka and some asylum seekers were doing so. He then noted the information about the applicant being in India and making an application to travel to India on an Indian passport in the name of [Alias 1]. According to the POE officer’s decision, when this was put to the applicant in the POE interview, the applicant denied any knowledge of [Alias 1] and suggested that perhaps his photo had been used for fraudulent purposes. The POE officer noted that the information match included the passport bio data page, and also a photo of the applicant in the [Country 1] Consulate and fingerprints, which indicated that [Alias 1] was in Chennai, Tamil Nadu, India. On this basis, the POE officer found that the applicant was not credible and he could not be satisfied of his claims. He therefore found that the applicant did not meet the definition of a refugee and was not satisfied that the applicant was owed protection obligations. The applicant’s case was automatically referred for IPA.

    Statutory declaration for Independent Protection Assessment

22. In a statutory declaration declared 3 February 2012, the applicant states that he makes a further statement in support of his POE.[2] In this statutory declaration, the contents of which are reflected in the delegate’s decision, he tells a different version of events as follows:

    [2] The Tribunal notes that based on the timing, this document was evidently prepared for the purposes of the IPA review rather than the POE.

    ·     In around August 1990 he left Sri Lanka because of the civil war and went to India.

    ·     In 1994, he went back to Colombo to go to [Country 2]. He worked in [Country 2] until August 2000.

    ·     In September 2000, he returned to Sri Lanka. He stayed in a lodge in Colombo. Two days after his arrival, the Sri Lankan Army conducted a search at the lodge. They asked the applicant where he was from and asked for his passport. He told them he had come from [Country 2] and his family were in India as refugees and said he wanted to go and join them. The people let him go because they saw he had been working in [Country 2].

    ·     He left Sri Lanka and went to India in March 2001. In 2003, there were peace talks in Sri Lanka and he decided to return with his wife and mother. For some time they lived peacefully.

    ·     Around February 2005, his cousin’s sister was affected by the tsunami and sought aid from an aid organisation. A member of the armed group tried to misbehave with her. She came to the applicant’s house and told them what happened. They made a complaint to the LTTE police in the area and they said they would take action against the man but nothing happened. Two days later, the applicant saw the man, [Mr A], and tried to grab him but other LTTE people intervened to protect [Mr A]. They said they would take care of him and the applicant should not take any action.

    ·     In May 2006, they were going to a wedding in [City 1]. They had to pass through a LTTE checkpoint and an Army checkpoint. At the Army checkpoint, the applicant was approached by a man who tied his hands, blindfolded him and took him away. They would not tell him where he was being detained. He believes [Mr A] is the one who identified him to the Army. They beat him with a pipe and broke his finger and his right leg. His cousin’s sister’s husband came and showed them his passport and that he had come from [Country 2] so he was not LTTE. They paid a bribe and the applicant was released.

    ·     In August 2006, he went back to India. His cousin’s brother told him it was not safe to stay in Sri Lanka because [Mr A] would continue to cause him problems.

    ·     He could not continue to live in India because of the bad living conditions and restrictions on work.

    ·     In India, he tried to get a visa for [Country 1]. Through an agent, he obtained a false Indian passport. He attended the Embassy and gave them his fingerprints. His application was refused twice. He feared that if the Indian authorities found out he had used a false Indian passport he would be deported to Sri Lanka. That is why he felt he had to leave India.

    ·     If he goes back to Sri Lanka he fears being detained and killed. He thinks the Sri Lankan army and associated paramilitary groups will harm and mistreat him.

    ·     He thinks he will be harmed because of his Tamil ethnicity and they will suspect him of being a member and/or supporter of the LTTE. He also believes he will be harmed because he departed Sri Lanka illegally and has informed the Australian authorities of the atrocities committed against Tamils in Sri Lanka.

    Independent Protection Assessment interview

23. In the IPA interview, as reflected in the delegate’s decision, the applicant provided the following relevant information in addition to what was contained in his statutory declaration of 3 February 2012:

    ·     He returned to India in August 2006 because of the incident at the checkpoint and due to the ongoing lack of security in the north of Sri Lanka;

    ·     He cannot return to [District 1] where his family once had land and a house because it was the place of the final war against the LTTE and it is still a high security area. The land is in the applicant’s name.

    ·     He has a brother who lives in [Country 1] and is now a citizen there. He has another brother who lives in [City 1] who does [occupation] and fishing for a living. He has a sister who died. In India, he lived with his wife, parents, older sister, her husband and their two children.

    IPA decision

24. As reflected in the delegate’s decision, the IPA assessor found that the applicant is from Sri Lanka and of Tamil ethnicity. The assessor accepted that the applicant used the false Indian passport in an attempt to seek asylum in [Country 1]. The assessor noted that much of the applicant’s previous evidence turned out to be untrue, especially the omissions and timeframes provided.

25. The assessor referred to country information in her decision relating to the security situation in Sri Lanka generally and for Tamils both in Sri Lanka and returning to Sri Lanka. These reports from 2010 to 2012 include reports from the United Nations, Amnesty International, news organisations including the Australian Broadcasting Corporation, United States Department of State, Reporters Without Borders, Canadian Immigration and Refugee Board and Human Rights Watch.

26. On the basis of the applicant’s statutory declaration dated 3 February 2012 and the information provided at interview, the assessor accepted:

    ·     The applicant was born in [City 1], in northern Sri Lanka, in [year] and that at the age of [age], in about August 1990, his family escaped to India where he stayed until 1994.

    ·     At the age of [age], he returned to Sri Lanka, applied for and obtained a Sri Lankan passport; and from 1994 until 2000 he worked in [Country 2] under contract as a [Occupation 2].

    ·     He returned to Sri Lanka in 2000 and was detained in Colombo before returning to India in 2000 to marry in 2001.

    ·     In 2003 he returned with his wife and mother to Sri Lanka where he stayed in the north until 2005. He had problems with the Sri Lankan Army (SLA) in 2006 and was beaten resulting in injuries. He left Sri Lanka with his wife and travelled to India where he remained until leaving for Australia.

    ·     He attempted to travel to [Country 1] from India on a false Indian passport in December 2010 and February 2011 but was unable to get a visa.

    ·     His mother, wife and one sibling live together in a refugee camp in Tamil Nadu; one brother resides in [Country 1] and another in [City 1], Sri Lanka; another elder sister was residing in [Country 1] but has passed away.

    ·     He gained his schooling in [District 1], Sri Lanka and obtained a qualification as a [Occupation 1] in 2005.

    ·     He has land in his name in Sri Lanka which his mother minded from 2006 until she also left Sri Lanka in 2008.

27. The assessor considered the applicant’s claims based on her findings about the applicant’s circumstances. The assessor considered the applicant’s serious credibility issues from the time he arrived in Australia. The assessor found that the applicant had not disclosed important events from his history and had denied he had attempted to enter [Country 1] on two occasions. The assessor was satisfied that she had established the correct timelines in the applicant’s past through the IPA process and that the applicant is a Tamil man from the north of Sri Lanka who had been outside Sri Lanka for around 15 years.

28. The assessor accepted the applicant may be investigated and interrogated on return to Sri Lanka to determine whether he was a security threat and had links to the LTTE. The assessor found that cumulatively, given the applicant was an adult Tamil male who had lived in an LTTE controlled area for much of his life and particularly in [District 1], his illegal departure for India and illegal journey from India to Australia (which had been described by the Sri Lankan Defence Minister at one stage as some kind of an LTTE operation), meant the applicant could be disproportionately affected by state security measures in Sri Lanka and there was a real chance he would be held, interrogated and mistreated if he returned and that this would constitute serious harm. The assessor also accepted that on return, the applicant may be investigated or interrogated by the Sri Lankan authorities to determine whether he was considered a security threat and that because the authorities fear that those abroad have been LTTE supporters, they may suspect he is a failed asylum seeker.

29. The assessor noted the applicant’s evidence that he spent 2003 to 2005 in Sri Lanka without problem. The assessor accepted he escaped in 2006 after an assault by the Army, but found that whether that confrontation would mean further injury on return, years later, was open to question. The assessor accepted that he was never a member of the LTTE but he did a short course on ‘safety’ run by the LTTE.

1. The assessor found that despite the applicant’s credibility issues, she could not positively reject that the events in Sri Lanka happened as he claimed. The assessor was satisfied that the applicant’s fear of persecution for reason of imputed political opinion and ethnicity was well-founded.

2. On 13 July 2012, the applicant received a letter notifying him that the independent assessor who conducted the IPA recommended that the applicant be recognised as a person to whom Australia has protection obligations.

   Application for a TPV and additional statement of claims

3. The applicant applied for his TPV on 24 March 2017. In relation to his claims, he reattached his statutory declaration from 3 February 2012 which he provided in support of his IPA review. Those claims are set out in paragraph 22 above.

4. On 16 May 2017, the applicant provided an additional statement of claims dated 3 April 2017 and supporting documents. In this additional statement of claims, as reflected in the delegate’s decision, the applicant makes new claims as follows:

   ·     The applicant did not previously disclose his full connection with the LTTE although his reasons for departing were true and correct. He omitted information surrounding his family’s LTTE connection.

   ·     The applicant did not disclose this information because he was scared the information would impute him as LTTE and lead to him being viewed by the Australian government as a security threat; and lead to his detention by ASIO. He heard from other detainees at Curtin that they were indefinitely detained because of their LTTE connections.

   ·     The applicant also feared the information could be transmitted to the Sri Lankan government and as one brother still remains in Sri Lanka, it may cause his brother harm or draw attention to him. His brother is already changing locations to prevent potential harm.

   ·     Having lived in Australia for many years and having spoken to many lawyers, the applicant now understands that it is very important to disclose all information relevant to his claims for protection; that his connections to his brother-in-law will not cause him to be detained by ASIO; and the information will be kept confidential and not be given to the authorities.

   ·     In summary, the applicant’s brother-in-law was a [specified rank] in the LTTE in the late 80s; he held a vital role with the LTTE and even met Prabhakaran. While he initially worked in the political arm of the LTTE drawing posters for their campaigns, he transitioned into the military wing as a cadre. As his career in the LTTE grew, he held various prominent positions ultimately becoming a [specified rank] in the LTTE and an acting commander in [City 1], a prominent and well-respected position.

   ·     In approximately 1987, the applicant’s brother-in-law was shot in the [body part] while leading an attack against some Sri Lankan forces and to this day, he does not have use of his [body part]. While he subsequently fled to India and received medical attention for his injuries, the Indian authorities found him and other LTTE members, including another general and forcibly returned them to Sri Lanka where the Indian Peace Keeping Forces detained him for his LTTE connections.

   ·     On release in 1990, he married the applicant’s sister and lived with the applicant’s family in [District 1]. Around that time, his brother-in-law feared [District 1] was going to fall to the SLA and made the decision to flee to India with the applicant and his family. This was because his brother-in-law feared being killed if he was captured by the SLA or at the very least be indefinitely detained.

   ·     The applicant therefore fears his close connections with his brother-in-law and the fact he previously lived with him means he will be imputed by the Sri Lankan authorities as being LTTE. As a consequence, the applicant will be detained, interrogated and most likely tortured if not killed. His previous personal issues raised with his first application will also cause him serious issues on return.

   ·     The applicant also believes his prolonged absence from Sri Lanka as well as his prior status as someone who was owed protection, obligations, combined with his brother-in-law’s role with the LTTE, will give rise to an adverse profile with the Sri Lankan authorities.

   ·     Hatred towards Tamil people is endemic in Sri Lankan society and just because they changed their leader does not mean that they still don’t fear a LTTE resurgence or hate Tamils.

   ·     His brother-in-law refuses to return to Sri Lanka because he is fearful of being killed by the authorities on return. The applicant shares his fear and is scared his connection to his brother-in-law will result in his eventual demise.

5. The supporting documents provided by the applicant comprise:

   ·     a photocopy of an article in Tamil with an English translation which purports to be an interview given by the applicant’s brother-in-law, named as ‘LTTE [specified rank] [Mr B]’ while he was being treated in Tamil Nadu. It states that it is published by ‘Political Division, Liberation Tigers of Tamil Eelam’ [in] 1989;

   ·     a copy of an undated photograph of an unidentified man lying on a bed.

   Interview with the Department

6. On 16 November 2017, the applicant attended an interview with a delegate of the Minister where he answered questions and provided further detail about his claims and the situation for him if he returns to Sri Lanka.

7. In the interview, the applicant clarified that he did not leave Sri Lanka illegally in 2006 because he departed from the airport in Colombo on his own passport, but he did arrive in Australia illegally.

   Post interview submissions

8. On 22 November 2017, the applicant’s representative wrote to the Department and provided submissions about the applicant’s case. The submissions explain that the applicant continues to rely on all evidence and submissions previously provided, except for the parts that were clarified by the applicant in the interview or in the submissions.

9. The submissions reiterate that the applicant fears persecution due to his:

   ·     race/ethnicity as a Tamil from the North Eastern province of Sri Lanka;

   ·     imputed political opinion, in that he will be perceived by the Sri Lankan authorities to be linked to the LTTE or a supporter of the LTTE because he has been detained by the Sri Lankan Army and Karuna Group; he grew up in [City 1] and spent much of his time in [District 1], both of which were strategically important towns held by the LTTE; he has close links to LTTE members through his brother-in-law who was a combatant and [specified rank] for the LTTE;

   ·     membership of a particular social group which is failed asylum seekers returning to Sri Lanka from a Western country.

10. The submissions state that the applicant fears the Criminal Investigation Department (CID) and other Sri Lankan government authorities and paramilitary groups active in Sri Lanka. He faces a real chance of serious harm in all areas of Sri Lanka and there is no effective protection available.

11. The submissions go on to address a number of the delegate’s concerns about aspects of the evidence given by the applicant in his interview. These are addressed in the delegate’s decision below. The submissions summarise again the applicant’s claims. They go on to refer to country information, including the UNHCR’s December 2012 Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka[3] and the Department of Foreign Affairs and Trade Country Information Report on Sri Lanka from 2015, which they submit demonstrates that when the elements of the applicant’s claims are considered cumulatively, there is real chance that the applicant will face serious harm if forced to return to Sri Lanka for the reasons stated earlier. They also submit that the applicant should be afforded protection under the complementary protection criterion due to the treatment he would face if arrested and detained.

    The delegate’s decision

    [3] ‘UNHCR Guidelines’.

12. On 24 November 2017, a delegate of the Minister refused the applicant’s application for a TPV. In assessing the applicant’s identity, the delegate considered the applicant’s attempted use of the false Indian passport in the name [Alias 1]. The delegate accepted the applicant’s explanation for why he attempted to use this passport to obtain a visa to travel from India to [Country 1]. The delegate stated that he would not consider the matter further and would not draw an adverse inference from it in relation to the applicant’s credibility.

13. As discussed above, in his decision, the delegate begins by setting out the written and oral evidence provided by the applicant for his POE and IPA evaluations and what the decision-makers found. The delegate goes on to set out the contents of the written evidence provided by the applicant with his TPV application in the statutory declaration dated 3 February 2012 and written statement dated 16 May 2017. He then goes on to analyse each of the applicant’s claims.

14. In relation to the applicant’s claim that he would be harmed as an ethnic Tamil from the north-eastern provinces of Sri Lanka, who lived much of his life in LTTE controlled areas, the delegate accepted this is where the applicant was from. The delegate accepted that the applicant was questioned in 2000 about LTTE membership and support and detained and beaten in 2006 and asked about LTTE membership and support and his brother-in-law. The delegate accepted that the applicant was questioned, detained and beaten at the [specified] checkpoint while travelling from [District 1] to [City 1] in May 2006. He did not accept as credible that this happened as consequence of [Mr A] dobbing the applicant in as being involved with the LTTE or that [Mr A] continued to have an adverse interest in the applicant. The delegate also did not accept that given the applicant had returned from [Country 2] in 2000 and had been back in Sri Lanka since 2003, that showing the applicant’s passport in 2006 would have been considered evidence that he was not involved with the LTTE. The delegate found that as the applicant was released after showing his passport in 2000, and his relative showing his passport and paying a bribe in 2006, the authorities did not consider the applicant to have a real or perceived link to the LTTE, in that if they had considered him to have a real or perceived link to the LTTE he would not have been released.

15. The delegate considered the applicant’s claim that he cannot return to [District 1] where his family once had land and a house because it is still a high security area. The delegate considered that the applicant may be able to request the return of the family house and land if it has not already occurred, as other Tamil landowners were reportedly doing. The delegate accepted that as a Tamil from the north and east of Sri Lanka, the applicant may face discrimination, but if it occurred, it would not amount to serious harm.

16. In relation to the applicant’s claim that he faces harm due to an imputed political opinion as a result of his family links to a senior LTTE combatant and [specified rank], the delegate expressed some concern about the credibility of this claim given the applicant had not raised it at various earlier points in the process when he had the opportunity, despite having access to migration assistance. Nevertheless, the delegate accepted the applicant’s reasons for omitting the information to be plausible and accepted that he has a family member who was a senior LTTE combatant and [specified rank]. The delegate found that when the applicant was detained and questioned in May 2006, the authorities were aware of his brother-in-law’s previous involvement with the LTTE because the applicant was asked about it. The delegate found that the fact the applicant was released after questioning suggests the authorities did not translate his brother-in-law’s adverse profile to him. The delegate found that the applicant did not have, and did not claim to have had, significant involvement with the LTTE during the war, he had not been involved in separatist activities and had not had any high-level involvement with the LTTE and therefore, based on country information referred to in the delegate’s decision, the applicant’s profile would not be of interest to the Sri Lankan authorities. The delegate found that there is not systematic targeting of the Tamil population generally and the applicant’s low-level profile would not be seen as a threat.

17. The delegate also found that based on country information, the applicant would not be imputed with an LTTE connection simply because of his Tamil ethnicity. The delegate noted the applicant was not politically active in Sri Lanka and he did not have an adverse profile, including for reason of his connection with his brother-in-law.

18. In relation to the applicant’s claim that he fears return for reason of his status as a failed asylum seeker returning from a western country and a prolonged absence from Sri Lanka, the delegate confirmed that the applicant did not depart Sri Lanka illegally but he has had a prolonged absence from Sri Lanka and arrived in Australia illegally. The delegate accepted that the applicant may be considered a failed asylum seeker and returnee from a western country. The delegate considered country information about the arrival process at Colombo airport for people such as the applicant. The delegate found that the applicant was not a person of interest to the authorities when he left Sri Lanka and the information did not suggest that Tamils who have spent lengthy periods of time outside Sri Lanka are facing serious harm on return for that reason, or for being a failed asylum seeker. The delegate also noted that the applicant had returned to Sri Lanka on several occasions in 1994, 2000 and 2006, and had not experienced problems at the airport. The delegate also did not accept the applicant’s claim that he would be mistreated for having told the Australian authorities about atrocities committed against his people by the Sri Lankan government because this information was already known and documented from various sources.

19. Considering the applicant’s claims singularly and cumulatively, the delegate found that the applicant would not face a real chance of serious harm if he returned to Sri Lanka in the foreseeable future.

    Evidence before the Tribunal

    The review application

20. On 14 December 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision with his application for review.

21. The applicant did not provide any additional documents or submissions to the Tribunal prior to the first hearing on 27 May 2022.

    The hearings

22. The applicant appeared before the Tribunal on 27 May 2022, 31 May 2022, 16 August 2022 and 5 October 2022 to give evidence and present arguments. The hearing on 16 August 2022 was held to discuss claims and issues arising out of the applicant’s post-hearing submissions dated 14 June 2022 and 1 July 2022. The hearing on 5 October 2022 was held to discuss issues arising out of the applicant’s post-hearing submissions dated 30 August 2022 and the Tribunal’s letter to the applicant dated 22 August 2022.

23. In the hearing on 5 October 2022, the Tribunal received evidence by telephone from [Mr C], [Position 1] of the Tamil Civic Centre. [Mr C] did not require the assistance of an interpreter.

24. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Tribunal is satisfied that the applicant was able to participate in the hearings in a meaningful way. The applicant was represented in relation to the review and his representative attended the hearings.

    Post-hearing submissions dated 14 June 2022

25. On 14 June 2022, the applicant’s representative provided post-hearing submissions to the Tribunal. In those submissions, the applicant’s representative provides a summary of information and submissions in addition to the information previously submitted to the Department and Tribunal in support of the applicant’s claims.

26. The submissions explain that the applicant fears harm if he returns to Sri Lanka due to his ethnicity, his political opinion, his imputed political opinion and his membership of particular social groups. It is submitted that the applicant’s claims must be considered cumulatively.

27. The submissions state that the applicant would be of interest to the Sri Lankan authorities for the following reasons, which should be considered cumulatively:

    ·     His ethnicity as a Tamil male who lived and worked in [District 1] which is an area that was under LTTE control;

    ·     He owns a house in [Village 3] where [a] massacre took place and the land is close to [a military] Base where there is an ongoing conflict between Tamil landowners and the military about expansion of the base;

    ·     He has undertaken work for the LTTE;

    ·     He is opposed to the Sri Lankan government persecution of Tamils;

    ·     His brother-in-law was a senior LTTE combatant and [specified rank];

    ·     He is a member of a family suspected or accused of being a ‘LTTE family’, which is a family that assisted or supported the LTTE;

    ·     He has spent time overseas seeking protection from Sri Lankan authorities;

    ·     He has spent a prolonged time in refugee camps in Tamil Nadu;

    ·     He has associated with other Tamil asylum seekers and refugees who might be of interest to the authorities;

    ·     He will be returned as an involuntarily returned failed asylum seeker after seeking protection;

    ·     He is opposed to the Sri Lankan government and the treatment and persecution of Tamils by Sri Lankan authorities.

28. The submissions refer to the UNHCR Guidelines and submit that the applicant’s links go beyond residency in a former LTTE area as he has a family link to a person who held a senior position in the LTTE and who was an LTTE combatant or cadre. It is submitted that the UNHCR Guidelines indicate that the applicant is a person in need of protection.

29. The submissions state that the applicant’s political opinion, being opposed to and fearing the Sri Lankan government and the persecution of Tamils by the Sri Lankan authorities, puts him at risk. It is submitted that he would not be able to engage in public protests critical of the Sri Lankan regime persecution of Tamils in Sri Lanka without fear of being monitored or detained or harassed. The submissions refer to the oral evidence given by the applicant to the Tribunal about his participation in Tamil remembrance events in Australia and submits that these events are organised by the Australian Tamil Congress, which is an organisation proscribed by the Sri Lankan government. It is submitted that participating in these remembrance events and associating with members of a proscribed organisation puts the applicant at risk if he returns to Sri Lanka. The submissions refer to parts of the current Department of Foreign Affairs and Trade Country Information Report on Sri Lanka dated 23 December 2021,[4] in support of the applicant’s claims.

    [4] The ‘DFAT Report’.

30. The submissions state that the applicant is at risk of persecution because of his imputed political opinion in Sri Lanka. It is submitted that he will be suspected of being a member, supporter or associated with the LTTE because of his ethnicity, he lived in an LTTE controlled area, he has undertaken contract work for the LTTE and he has spent time overseas seeking protection. It is submitted that this will be heightened by the involvement of the applicant’s brother-in-law with the LTTE and the applicant’s association with refugees and members of the Tamil diaspora overseas. The submissions note that the delegate accepted the applicant was detained, beaten and questioned in Sri Lanka as a result of being imputed a political opinion by the authorities. Again, the submissions refer to the DFAT Report in support of these claims.

1. The submissions state that as a family member of a former LTTE cadre, the applicant is at risk of persecution in Sri Lanka. The DFAT Report is referred to in support of this.

2. The submissions refer to the applicant’s claim that he cannot return to live in the house he owns in [Village 3] in [District 1] and returning to his house puts him at risk of persecution. The submissions explain that the applicant lived in an area that was controlled by the LTTE and whose population had a history of being accused of supporting the LTTE. It is submitted that the applicant’s house is near [a military] Base, it is located in an area considered a high security zone, people whose homes are near the [military] Base have not been allowed to return to live in their homes and country information indicates there is ongoing conflict between the Tamil population and the military about a planned expansion of the base. It is submitted that the applicant fears the military will not allow him to live in his house because it is close to the [military] base and in a high security zone, and he claims that trying to live in his house will put him at risk of persecution and significant harm and he fears being detained and interrogated by the military about support for the LTTE. The submissions refer to a number of articles about land disputes between Tamils and the Sri Lankan government, including in relation to the [military] base in [Village 3].

3. The submissions state that the Sri Lankan government continues to be opposed to memorialisation by the Tamil community of people killed by authorities in [Village 3]. It is submitted that any involvement by the applicant in memorialisation of victims of war or expressing his political opinion in his local area will put him at risk of persecution. The submissions refer to a May 2017 statement from the Adayaalam Centre for Policy Research, the DFAT Report and a Human Rights Watch report in support of this claim.

4. The submissions request further information from the Tribunal about concerns the Tribunal raised in the hearing about aspects of the applicant’s claims. The submissions request that if the Tribunal intends to reach the conclusion that aspects of the applicant’s claims and evidence are not credible, that the applicant be advised of the Tribunal’s adverse finding in writing, the Tribunal’s reasons for reaching this conclusion, and that the applicant be given the opportunity to respond, prior to the Tribunal finalising its decision. The submissions also request that if the Tribunal is considering make a finding that is different to certain findings made by the delegate, that the Tribunal inform the applicant of its reasons for this and the information being relied upon in writing and give the applicant an opportunity to comment prior to the Tribunal finalising its decision.

5. The submissions state that when assessing future risk, it is important to consider the actions, motives and conduct of Sri Lankan authorities towards Tamil people suspected of supporting or associating with the LTTE and suspected of being opposed to the Sri Lankan regime’s persecution of Tamils. The submissions refer to actions of the government and the police, army and CID towards Tamils and state that the government and authorities in Sri Lanka do not offer effective protection to Tamils from the risk of persecution. It is submitted that the assessment of the future risk of harm to the applicant needs to include the assessment of how he will be treated by the authorities on his return, based on his personal profile. It is submitted that any assessment of conditions for returnees, including the applicant, must consider how they will be treated by authorities during the screening process at the airport and after they leave the airport in Sri Lanka. It is also submitted that living in fear and living at risk of being harmed where the authorities do not offer effective protection amounts to persecution, and the threat of harm or being at risk of being harmed also constitutes persecution.

6. The submissions state that State protection is not available to the applicant, and relocation within Sri Lanka is not relevant or reasonable because he will be harmed wherever he goes. The submissions also state that the applicant meets the complementary protection criterion.

   Post-hearing submissions dated 1 July 2022

7. On 1 July 2022, the applicant’s representative wrote to the Tribunal submitting copies of a number of documents on the applicant’s behalf. The letter stated that these documents were submitted by the applicant in support of his claim that [Mr D], also known as [Mr B], is married to his sister [Ms E]. The attached documents are as follows:

   ·     detention certificate from [City 1] for [Mr B] dated [in] 1990, indicating that he was detained in [a] Detention Camp [from] August 1988 [to] February 1990;

   ·     letter dated [in] May 1990 from Grama Sewaka Officer in [City 1] (with English translation) which states that [Mr D] was known as [Mr B];

   ·     copy of Sri Lanka Refugees Identity Card (with English translation of the names) of the applicant’s sister naming the applicant’s sister as head of family and [Mr D] as her husband;

   ·     letter dated 14 June 2022 from [Mr C], [Position 1], Tamil Civic Centre (TCC). [Mr C] states that the applicant is an active volunteer with the TCC in Sydney. It says they have worked with the applicant over the past six years in successfully organising events, protests and meetings in relation to the past 70 years of Tamil genocide in Sri Lanka and the Tamil struggle for self-determination in north and east Sri Lanka. The letter states that the applicant actively helps in organising, promoting and setting up of various events which include Tamil Heroes Day, Black July remembrance and Tamil Genocide remembrance annual events. It states that due to his genuine passion towards the plight of Tamil people in Sri Lanka, they actively involve him in event organisation and promotion. The letter states that the applicant has provided vital contributions in pro-Tamil community political activities and events and therefore his activities are a clear indication of his political opinion against the Sri Lankan government.

   ·     The letter also reiterates the request to receive further information/clarification to enable the applicant to fully respond on adverse information raised by the Tribunal in the hearings and the opportunity to comment/provide further submissions after the information/clarification is received. The letter requests that this be provided prior to the Tribunal making a final decision on the applicant’s application.

   Tribunal’s response to representative’s request for information and reasons in writing

8. On 9 August 2022, the Tribunal wrote to the applicant’s representative noting the request in the post-hearing submissions dated 14 June 2022 and 1 July 2022 for the opportunity to receive further information and clarification in writing about concerns the Tribunal raised with the applicant in the hearings about aspects of his claims and evidence, and requesting the opportunity to comment and provide further submissions in writing once the information is received, prior to the Tribunal making its decision. The Tribunal explained that it had carefully considered the request, but it would not be writing to the applicant about these matters. The Tribunal also noted that the applicant is entitled to request a copy of the audio recording of the hearing.

   Further post-hearing submissions dated 30 August 2022

9. On 22 August 2022, the Tribunal wrote to the applicant’s representative explaining that it had become aware of a recent article which indicated the Sri Lankan government had lifted its ban on six Tamil diaspora groups and 316 individuals.[5] The article indicates that this action was taken by the Sri Lankan government which believes that re-engaging with Tamil diaspora groups could help the government attract much-needed foreign exchange reserves. The Tribunal provided a copy of the article to the applicant’s representative and also attached a copy of the new Gazette notice issued by the Ministry of Defence on 1 August 2022.[6] The Tribunal invited the applicant to make any submissions on this information as part of the further post-hearing submissions being provided on 30 August 2022.

   [5] (accessed 19 September 2022)

   [6] (accessed 19 September 2022). The Gazette notice provides a List of Designated Persons which are entities and individuals who are designated as being involved in terrorism-related activities and funding for terrorism.

10. On 30 August 2022, the applicant’s representative provided lengthy further post-hearing submissions. Having carefully compared these written submissions to the written submissions dated 14 June 2022, the Tribunal notes that most of the material contained in the further submissions is a verbatim repetition of the 14 June 2022 submissions which are described above.

11. The Tribunal will not repeat that information, but notes the following new information and submissions as follows.

12. The submissions note that the UNHCR Guidelines have not been updated since 2012 but submit they still need to be considered.

13. The submissions address the article and Gazette notice the Tribunal invited the applicant to comment on in its letter dated 22 August 2022. The submissions note that the article states the Australian Tamil Congress (ATC) is one of the diaspora groups that was delisted. The submissions state that the article refers to these groups having been listed and delisted by the government at times, and so the fact that the ATC is delisted now does not mean it will remain that way. It is not possible to know if the ATC will be listed or delisted at the time the applicant returns to Sri Lanka if he is involuntarily returned. The submissions state that the motive for delisting these groups, according to the article, is to attract foreign exchange reserves and it does not refer to the government changing its view of the LTTE and suspecting or accusing many diaspora groups of supporting the LTTE. The submissions state that the Tamil Youth Organisation and Tamil Rehabilitation Organisation, which operate in Australia, remain listed. The submissions state that this information indicates the Sri Lankan government is still suspicious and concerned about the activities of some organisations and members of the Tamil diaspora in Australia. The submissions also state that country information indicates that being delisted does not necessarily mean the activities of the group are not monitored by authorities. It is submitted that the applicant’s association with and participation in or/activities organised by Tamil diaspora groups that oppose the Sri Lankan government, including one group that was proscribed and accused of being connected with the LTTE, puts him at risk of persecution.

14. The submissions note that in the hearing on 16 August 2022, the Tribunal referred to the applicant raising his claim about his house and land for the first time in the post-hearing submissions dated 14 June 2022 and said that the fact he had not raised this earlier was a concern for the Tribunal. The submissions state that the claim is not a new one and it was something the applicant raised with the delegate and is referred to in the delegate’s decision and is mentioned in the IPA decision. The submissions seek clarification from the Tribunal as to whether it accepts the applicant’s claim about his house and land is not new and that the Tribunal states any adverse information it wishes the applicant to comment on.

15. The submissions refer to the letter submitted by the applicant from the TCC and note that in the hearing, the Tribunal expressed a concern that it might find the letter exaggerates the applicant’s involvement and that the TCC might have an interest in doing so. It is submitted that the applicant is concerned about the assessment of his credibility and also the credibility of the TCC and the person who wrote the letter where no reasons or evidence have been provided. The submissions state that the Tribunal did not raise any adverse information regarding the content of the letter prior to the hearing and the applicant had no notice that the Tribunal might find that the TCC or the person who signed the letter had not been truthful and that the TCC and the applicant had tried to deceive the Tribunal. The submissions state that had the applicant been made aware prior to the hearing of the Tribunal’s serious credibility concerns, he would have organised for a witness to attend the hearing.

16. The submissions refer to the applicant doing contract work for the LTTE as a [Occupation 1] and submit that this puts him at greater risk of being questioned by the authorities about his association with the LTTE and harmed as a result.

17. The submissions reiterate the request referred to above for the applicant to be advised in writing by the Tribunal if it is considering making adverse findings against the applicant or findings that are different to that of the delegate, and that the Tribunal write to the applicant explaining its reasons for this and giving him the opportunity to respond in writing prior to the Tribunal finalising its decision.

    Further post-hearing submissions dated 12 October 2022

18. At the conclusion of the hearing on 5 October 2022, the applicant’s representative indicated that she needed to provide additional post-hearing submissions to address issues including the Tribunal’s approach to the evidence of the applicant and [Mr C] relating to the applicant’s involvement with the TCC.

19. The Tribunal attempted to resolve the matters raised by the applicant’s representative in the hearing, however she insisted that she needed time to discuss matters with her client first. The Tribunal agreed to give seven days to provide any additional written submissions. The Tribunal also explained to the applicant’s representative that the repetition of material in her lengthy previous submissions was not helpful to the Tribunal and requested that any further written submissions should focus clearly on any outstanding issues the applicant wished to address.

20. Unfortunately, the applicant’s representative ignored this request by the Tribunal. On 12 October 2022, the applicant’s representative provided lengthy additional post-hearing submissions. Having carefully compared these written submissions to the written submissions dated 30 August 2022, the Tribunal notes that most of the material contained in these further submissions is a verbatim repetition of the 30 August 2022 submissions which are described above.

21. The Tribunal has carefully considered these further written submissions and has addressed any new matters arising from them in its reasons below, as appropriate. For completeness, the Tribunal notes the following new information or submissions contained in these submissions as follows.

22. It is submitted that a person not listed in the Gazette notice can still be of interest or at risk of being of interest to the authorities.

23. Additional country information is referred to in relation to the applicant’s claim about his land in [District 1]. It is submitted that the applicant does not understand why the Tribunal might make a finding that is different to the delegate’s regarding the credibility of the applicant’s claim that he/his family has land in [District 1].

24. It is submitted that the Tribunal did not put to [Mr C] potential concerns it might have about his evidence in relation to the applicant’s activities with the TCC. The submissions go on to explain why the evidence of the applicant and [Mr C] should be accepted in support of the applicant’s claims.

25. In relation to relocation, it is submitted that the DFAT Report supports the view that relocation can be difficult in practice and the process of having to register in a new area includes obtaining a police clearance.

26. It is submitted that certain country information referred to by the Tribunal in the hearing from the DFAT Report relating to the applicant’s claims is not relevant to him.

27. It is submitted that despite the fact that the applicant exited and entered Sri Lanka legally in the past without incident at the airport, this time it will be different because his profile has changed and he will be returning as an involuntary failed asylum seeker after seeking protection and so he will be subjected to different processes when entering the country. The submissions refer to the relevant section of the DFAT Report and submit that the risk of arbitrary arrest and detention and the risk of convention-related persecution in the applicant’s local area and throughout Sri Lanka need to be considered despite the country information stating that DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

    Nationality

28. The applicant claims to be a citizen of Sri Lanka and provided to the Department documentary evidence of his identity and citizenship, including copies of the bio-data pages of his Sri Lankan passport issued [in] 2003, his Sri Lankan birth certificate, his National Identity Card and his Government of Tamil Nadu Refugee Identity card. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka. The Tribunal finds Sri Lanka is his receiving country for the purpose of assessing his claims for protection.

29. The delegate noted the applicant’s evidence in the interview about his use of the alias [Alias 1] and accepted his explanation for that, which was that it was not possible for Sri Lankans to travel from India to [Country 1]. The delegate stated in his decision that he would not consider the matter further and no adverse inference would be drawn from the applicant’s conduct.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

30. 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.

31. 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.

32. 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).

33. 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.

(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.

…