1804539 (Refugee)

1804539 (Refugee) [2023] AATA 1098 (2 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs CHANDRANI BUDDHIPALA (MARN: 9581168)
CASE NUMBER:  1804539
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Rachel Da Costa
DATE:2 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 February 2023 at 4:52pm
CATCHWORDS
REFUGEE – Protection visa – Sri Lanka – applicant declined his invitation to attend a hearing – political profile – imputed political opinion as a supporter of the LTTE – connections to the LTTE – Tamil from the Northern Province of Sri Lanka – applicant returned to Sri Lanka voluntarily rather than under duress – significant discrepancies in the applicant’s own written and oral evidence – applicant was not a person of adverse concern to the authorities –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 438, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 7 April 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
In his Protection visa application form, the applicant provides the following information. He was born in [year] in [Country 1]. He is a Sri Lankan citizen and has never been a citizen of another country. He speaks, reads and writes Tamil and English. His ethnicity is Tamil and his religion is Hindu. In Sri Lanka, he was a [Occupation 1]. He is separated from a relationship that began on [date] November 2015 and ended on [date] March 2016 in Sydney.
In Sri Lanka, he has his mother and two sisters. His father is deceased. He has another sister who lives in [Country 2]. He has a brother and sister who live in Australia and their spouses. His ex-wife, who was born in Sri Lanka, also lives in Australia.
He first arrived in Australia in January 2016. He returned to Sri Lanka on [date] March 2016 and re-entered Australia on [date] January 2017. He departed Sri Lanka legally travelling on his Sri Lankan passport which was issued [in] 2013 and was the holder of a Visitor visa. From [date] December 2015 to [date] December 2015 he travelled to [Country 3] on an official visit.
In Sri Lanka, from June 1986 to May 1997, he lived at [Town 1]. From May 1997 to May 2002 he lived at [address]. From May 2002 to October 2004, he lived at [Town 1]. From October 2004 to December 2007 he lived at [address]. From December 2007 to April 2014, he lived at [Town 1]. From April 2014 to December 2015, he lived at [address]. From January 2016, he lived in Australia.
He completed [a grade] in May [2007]. Prior to February 2014, he was unemployed. From February 2014 to June 2015, he worked as a [Occupation 1] in [a suburb]. From July 2015 to June 2016, he worked as a [Occupation 2] for [Employer 1] in [a suburb].
Evidence before the Department
Protection visa application
The applicant’s claims are contained in a statutory declaration made 6 April 2017 attached to his protection visa application form. The applicant claims as follows:
·     He and his family moved to Kandy in May 1996. The applicant’s father worked for the [government].
·     In January 1998, the applicant’s brother was taken by the police and assaulted on suspicion of being linked to the LTTE.[1] The applicant’s father arranged for his release after paying a bribe. His brother had to report to police every three months. The applicant’s father advised his brother to leave the country.
[1] The Liberation Tigers of Tamil Eelam. See DFAT Country Information Report Sri Lanka 23 December 2021 (DFAT Report).
·     In early 2002, there was a ceasefire between the Sri Lankan government and the LTTE. In May 2002, the applicant and his family returned to [City 1]. They attracted suspicion from the LTTE because they had been living in a Sinhalese area (Kandy). The applicant’s brother was taken by the LTTE and tortured.
·     In October 2004, the family moved to Colombo because they knew the LTTE would come after them and torture them.
·     In May 2006, the applicant’s brother was detained by the Criminal Investigation Department (CID) and tortured. The applicant’s father took them back to Kandy because it was not safe for them in Colombo. As a young Tamil boy, the applicant was afraid.
·     In May 2007, the applicant was arrested for the second time. He was the only Tamil student in his class at school. Policemen came to his school and took him to [a] police station for further investigation. He was in custody for three days and interrogated about his brother. The applicant was released after his father and school principal intervened. He had to report to the police station every day.
·     After this, the applicant’s father was scared to keep him at home so the applicant moved to a friend’s place. About two weeks later, police came to the applicant’s home looking for him. They forced his mother to call him. CID police found the applicant’s location and arrested him and took him back to the police station. The police released the applicant’s mother but they refused to release him. They questioned him because they suspected he and his brother were supporters of the LTTE.
·     The applicant was detained for nearly one month. His family did not know where he was. During this time he was severely assaulted. Eventually he told them that his brother had fled the country. This made the police decide that the applicant’s brother was a supporter of the LTTE. The applicant said this was true so that the police would release him. The applicant was released after his father paid a large bribe. He had to report to the police station once a month.
·     In around December 2007, the applicant went back to [Town 1], [City 1]. His mother and father remained in Kandy because of his father’s [work]. The applicant hid with a relative of his father so he was not caught by the LTTE and forced to join them.
·     On [date] November 2008, the applicant was arrested and taken to [a] police station. Under interrogation he denied any connection to the LTTE. They wanted to know why he had moved from Kandy to [City 1]. The applicant was released after his father met with high officials in Colombo and paid a bribe.
·     In 2009 after the end of the war, the Sri Lankan Army started looking for LTTE cadres and detaining suspects. The applicant felt unsafe in [City 1]. He started looking for a job in Colombo and his father found him some contacts.
·     On [date] June 2011, the applicant’s father was found dead in the river at the back of the applicant’s house. The police report said it was suicide but the applicant believes his father was killed by the authorities. The applicant believes his father was killed by the authorities because the applicant’s brother left Sri Lanka and sought refuge in Australia.
·     After his father was killed, the applicant’s mother told the applicant that his father had links to the LTTE and had helped them build things in the [Town 1] area. After he got married, his father realised it was too dangerous and so he had moved to Kandy and found work there and lived there for the rest of his life. He lived among the Sinhalese majority and worked for the government.
·     The applicant started to attend an English course in [City 1]. Two months later, in March 2013, he was called by [City 1] police for investigation. They asked him about his brother and father and implied his father had LTTE links. The applicant was released after one week with the assistance of friends and the church pastor.
·     The applicant stopped attending his English classes and was selected for a job in [a] Company [in] July 2014. He moved to Colombo, [with] his mother.
·     While working in Colombo, he fell in love with [name deleted] and they got married on [date] November 2015.
·     While in Colombo, the applicant joined a [Sport 1] club called [Club 1]. [Mr A, who is the son of a prominent politician, Mr B], was also a member and played [Sport 1]. The applicant found out that [Mr A] was suspected of killing another [Sport 1] player, [name], in May 2012. When the applicant found out about this he stopped going to the club.
·     In February 2015, the applicant was arrested. He was taken to a secret place and interrogated and accused of being an LTTE supporter. They said his brother and father were LTTE supporters and when he denied that he was tortured. They asked him why he had joined [Club 1] and why he came to Colombo. He was held for four weeks and released after his mother pleaded and begged the officer in charge of the police station.
·     In December 2015, the applicant travelled to [Country 3] for work. On the day he returned, he was detained at the airport and questioned by the CID at their headquarters. His employer, who was Sinhalese, got him released.
·     The applicant and his wife applied for tourist visas to come to Australia. The applicant’s employer used an agent and with his influence and the documents provided, the visas were granted.
·     On [date] January 2016, the applicant and his wife arrived in Australia. He had to leave his mother alone in their home in [Town 1]. The applicant’s sisters were not allowed by their husbands to visit or take care of his mother because his parents had failed to give them a dowry.
·     On 28 February 2016, the applicant got a call saying his mother had suffered a heart attack and was taken to the hospital in [Town 1]. The applicant told his wife he was going to help his mum. His wife was against him going back to Sri Lanka and she threatened to leave him. The applicant had a multiple entry visa so he knew he could come back to Australia after his mum got better.
·     On [date] March 2016, the applicant returned to Sri Lanka. He went straight to the hospital. The applicant stayed with his mother at the hospital until she was discharged and he took her to [Town 1]. The applicant stayed with her and helped her to recover.
·     He stayed inside his house so his presence would not be known. He knew he could not leave his mother and return to Australia. There was a military presence in [City 1] looking for LTTE suspects.
·     On 27 December 2016, a group of men came to the applicant’s house and threatened his mother about giving information about her children. Luckily, the applicant was not home.
·     The applicant’s mother told him to get out of [City 1] and to leave Sri Lanka. The same day, he left [City 1], went to his employer’s home and asked for help to get to the airport. The applicant’s employer called a friend of his in the immigration section at the airport so the applicant could get through immigration without a problem.
·     When the applicant arrived in Australia, his wife had left him and he could not find her. Even today, he does not know her whereabouts.
The interview
On 18 December 2017, the applicant attended an interview with the delegate to discuss his protection visa application claims. In that interview, the applicant provided further information in relation to his claims and made the following new claims, as reflected in the delegate’s written reasons:
·     The applicant is now divorced from his wife.
·     The applicant’s third sister came to Australia in 2002 to be with her Australian citizen husband and the applicant’s brother came in 2006 after being sponsored by his brother-in-law and was granted asylum.
·     When the applicant was questioned by the police in 2007 after they came to his school, the police did not suspect him of LTTE involvement but were only interested in his brother.
·     Two weeks later, the applicant was arrested again. He was tortured, told not to leave the area and to produce his brother. He was released after two to three days.
·     Two weeks later he was arrested again and told to produce his brother. He was detained for three days and badly mistreated.
·     During his detention in 2007, the police threatened the applicant that if he left the area again they would do something to his family. The applicant knows his father had been killed because the applicant didn’t stay and he went to [City 1] and the authorities thought he also had fled Sri Lanka.
·     Between 2007 and 2011, the applicant had not contacted his parents as he feared the authorities would be able to locate him through his phone activity and so he did not know what was happening with them during this time.
·     Sometime in 2012, while walking to report at the police station, the applicant was taken in a white van. His abductors wanted him to become a ‘spy’ and identify LTTE individuals. The applicant refused and was slapped and forced to sign a contract to become an informer. He was released the next day.
·     The applicant obtained a job in Colombo and relocated there with his mother in December 2013.
·     In 2014, the applicant joined the [Sport 1] team in which [the politician Mr B]’s son played. The applicant was the only Tamil player. He left after about six months.
·     In December 2015, when the applicant returned from his trip to [Country 3], he got into a car with a driver who he assumed was taking him home but he was taken to people associated with [Mr A] and his [Sport 1] team. These people were suspicious that the applicant had left Sri Lanka. They beat him, took him home and called his landlord and told him the applicant was linked to the LTTE. The applicant, his wife and mother were evicted.
·     Soon after the applicant’s arrival in Australia with his wife in January 2016, he received a call from his mother’s phone and the person calling said his mother had been taken and unless the applicant returned to Sri Lanka his mother would be killed. The applicant’s wife thought it was too dangerous for the applicant to return but he went anyway.
·     The applicant was met at the airport and taken to where his mother was being held. The men asked the applicant for his passport but the applicant assured them he would remain in Sri Lanka with his mother. The men beat the applicant and then told him and his mother to go home and remain there. The applicant took his mother to [City 1].
·     In May 2016, there was an explosion. The applicant and others were arrested by police and questioned before being released. The applicant’s mother urged the applicant to leave Sri Lanka to preserve his life. The applicant moved to [Area 1] and stayed with a relative in a remote location. He used his visa to leave Sri Lanka and return to Australia.
·     When the applicant returned to Sri Lanka on that trip he thought he would not return to Australia because his wife had left him and he had nothing drawing him to Australia, and he did not want to leave his mother.
·     In November 2016, the applicant’s wife called him to ask for a divorce. The applicant told her he did not want a divorce and would come back to Australia to be with her and bring his mother. She said she no longer wanted to be with him.
In the interview, the delegate put to the applicant that the oral version of events he had given about why he returned to Sri Lanka after arriving in Australia was very different from what was in his written statement. The applicant said the oral version was the same as in his statement and produced a copy of it. The applicant’s migration agent said the same and said she did not know where the version the delegate was referring to originated and she would look into it.
Post interview submissions
After the interview, the applicant provided a statement dated 25 January 2018 to clarify some issues raised during the interview. He makes the following points:
·     At the time he instructed his agent he did not have money and couldn’t afford an interpreter so they talked in English.
·     His mother is a heart patient and suffered a heart attack after the applicant went back to Sri Lanka in February 2016.
·     He mentioned this to his agent but somehow she got the facts mixed up in her initial draft. When the initial draft was read out to him, the applicant corrected the facts and his agent corrected the statement. Somehow, he was given the uncorrected statement to sign before the Justice of the Peace. The statutory declaration was signed by him on the way to the Department to lodge the application and they did not have enough time to check the document thoroughly from start to end.
·     On the day of the interview, the applicant was not totally fit to concentrate. During this period, he felt weak and sick and could not attend his agent’s office to discuss the case with her.
·     What he said at the interview is what really happened. Remembering past incidents of torture is painful to him and he answered the questions to the best of his ability.
·     His brother has travelled to Sri Lanka twice as far as he knows; once for his father’s funeral and once the first time his mother had a heart attack. He travelled on his Australian passport so he was not identified or suspected but he was still scared.
The applicant’s migration agent provided a letter dated 25 January 2018 in which she submits as follows:
…
With reference to the above application, I wish to submit the following:
During the initial consultation, the visa applicant did mention the fact that his mother is a heart patient. His instructions regarding the incident in 2016 got mixed up and was incorrectly stated by me in the initial statutory declaration I prepared on his behalf. This was later corrected by him and the document was accordingly amended in the relevant paragraph.
However, in the rush the previous version was printed and signed by my client and the signed document was attached to the application. Due to his sickness, we could not have a consultation prior to the interview and this error did not come to my attention or my client’s until he was questioned by you at interview.
Therefore, I wish to most kindly request you to consider his evidence given at the interview and truly apologise for this error and any inconvenience this may have caused.
My client’s evidence given at the interview was very consistent. There were no contradictions, inconsistencies and omissions in his evidence except for the confusion regarding the content stated in paragraph 38 of his written statement for which he has provided you with his explanation. The sequence of events were consistent. Therefore, it is my submission that my client’s account of his past events is true. His emotional distress when talking about his painful experiences was apparent.
It is my submission that my client’s evidence is consistent with country information and other sources of information. His claims are consistent broadly with what’s going on in the country.
…
The delegate’s decision
On 2 February 2018, the delegate made her decision. In her written reasons, the delegate highlights a number of aspects of the applicant’s evidence which she considers to be inconsistent, implausible and illogical and that she does not accept. The delegate was very concerned about the two different accounts of the applicant’s return to Sri Lanka and was sceptical about the explanation offered by the applicant and his migration agent. She considered there to be significant discrepancies between the applicant’s written claims and oral testimony at the interview in relation to certain events which raised concerns about his credibility. The delegate accepted that the applicant and his family were questioned by the authorities in relation to his brother’s whereabouts, but she did not accept the rest of the applicant’s claims relating to problems he claimed to have experienced and found that he was never a person of adverse interest to the Sri Lankan authorities. Accordingly, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal

On 21 February 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
Applicant’s Visitor visa application file
As part of its preparation, the Tribunal obtained a copy of the Departmental file relating to the Visitor visa applications of the applicant and his ex-wife.[2] Where relevant, the Tribunal has referred to material on that file below.
Protection visa application file of the applicant’s ex-wife
[2] [deleted]
Having determined from Departmental records that the applicant’s ex-wife had been granted a Protection visa at the Departmental level, the Tribunal obtained a copy of the relevant Departmental file.[3]
[3] [deleted]
Where relevant, the Tribunal has referred to material on that file below. The Tribunal notes that it did not divulge to the applicant any information about the substance of his ex-wife’s claims for protection.
The applicant’s request for a decision on the papers
The applicant was first invited by the Tribunal on 11 May 2022 to attend a hearing to give evidence and present arguments relating to the issues arising in his case. The hearing invitation explained that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The hearing was postponed and rescheduled a number of times predominantly for reasons relating to health issues the applicant was experiencing. He provided a number of medical certificates and other medical records in support of his requests for rescheduling.
On 29 November 2022, the Tribunal wrote to the applicant inviting him to a hearing on 16 December 2022. This letter explained to the applicant that in the event he intended to submit that he was unable to attend the hearing for a medical reason, the Tribunal would require a report from his treating medical practitioner providing details of his medical condition(s) and explaining why he was unable to attend the scheduled hearing to give evidence and present arguments. The Tribunal indicated that it may also request the applicant’s treating medical practitioner to make themselves available at the hearing to give evidence to the Tribunal so that the Tribunal could discuss options for how the hearing could be managed in a way that would enable the applicant to participate while taking account of his claimed health issues.
On 12 December 2022, the applicant’s representative provided a number of documents to the Tribunal including medical documents relating to the applicant, a statement from the applicant’s current wife and the birth certificates of the applicant’s two children who were born in Australia. The Tribunal does not consider these documents to be relevant to the applicant’s claims for protection and so it will not refer to them further. The applicant’s representative also provided an additional statutory declaration from the applicant dated 12 December 2022. This is set out below.
On 13 December 2022, the applicant, via his representative, indicated that he could not attend a hearing and requested that the Tribunal make a decision on the papers. The Tribunal acknowledged this request in writing on 14 December 2022.
Additional submissions
On 12 December 2022, the applicant provided a statutory declaration declared on the same date. In that statutory declaration:
·     the applicant provides background on the location of his various family members and dates of his travel to Australia and application for a Protection visa.
·     he states that he met his current wife in August 2018, they moved in together in December 2018 and they married on [date] May 2019. Their first child was born on [date] and second child on [date].
·     the applicant paraphrases many, but not all, of the claims he made in his statutory declaration of 6 April 2017 about events that happened in Sri Lanka.
·     the applicant reiterates his explanation of how the discrepancy arose in his statutory declaration of 6 April 2017 and the evidence he gave in the interview with the delegate about the circumstances of his return to Sri Lanka in March 2016.
·     the applicant explains the history of his relationship with his current wife, whom he met in Australia.
·     the applicant reiterates the health problems he has experienced relating to high blood pressure which he says is exacerbated by stress.
Letter to the applicant pursuant to s 424A
On 19 December 2022, the Tribunal wrote to the applicant pursuant to s 424A. In that letter, the Tribunal informed the applicant that it had obtained copies of the Protection visa application file relating to his ex-wife and the Visitor visa file relating to his and his ex-wife’s applications for Visitor visas made on 8 January 2016.
In the letter, the Tribunal informed the applicant that there was a non-disclosure certificate issued by the Department in respect of his ex-wife’s Protection visa file. The Tribunal informed the applicant as follows:
Non-Disclosure certificate
In relation to your ex-wife’s Protection visa application file, on 18 October 2022, a certificate was issued by the Department of Home Affairs under s 438 of the Migration Act 1958 (Cth) (the Act) regarding the Non-Disclosure of the material held on that file (Department file [deleted]).
Section 438 of the Act permits the Tribunal to exercise its discretion in relation to the disclosure of certain information. The Department has determined that the material within the file should not be disclosed because it contains documents affecting personal privacy. The Presiding Member has had regard to the reasons specified in the Delegate’s s 438 certificate and agrees that it is not appropriate to give material on the file to you on that basis.
However, there is information on the file which the Tribunal considers is relevant to your claims. The Tribunal has disclosed this information below to the extent that it considers appropriate to enable you to comment on that information, without compromising the privacy of your ex-wife.
A copy of the Non-Disclosure certificate is attached for your reference. The name of the Delegate has been redacted from the certificate as this information is irrelevant and does not require comment.
You are invited to provide your comments or submissions about the validity of the Non-Disclosure certificate and exercise of the Tribunal’s discretion by 3 January 2023.
The letter went on to invite the applicant to comment on certain information as follows.

Invitation to comment
In conducting the review, we are required by the Act to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The reason for your return to Sri Lanka in March 2016
The particulars of the information are:
·In your Visitor visa application you state that you work as a Manager for [Employer 1] and in your Protection visa application form you state that at the time you left Sri Lanka you worked for [Employer 1] as a [Occupation 2].
·In your ex-wife’s Protection visa application, she states that you had a business and that after arriving in Australia, you had to return to Sri Lanka to wind up your business.
·You first arrived in Australia on [date] January 2016. On [date] March 2016, you returned to Sri Lanka. On [date] January 2017, you returned to Australia.
·In your statutory declaration declared on 6 April 2017, attached to your Protection visa application form, you state that on 28 February 2016, you received a call saying that your mother had suffered a heart attack and so you returned to Sri Lanka to help her. You say that your wife was opposed to you returning to Sri Lanka.
·In the interview with the delegate, you gave evidence that the reason you returned to Sri Lanka was that you received a call from your mother’s phone and the person on the line told you that they had taken your mother and unless you returned to Sri Lanka she would be killed. You returned to Sri Lanka to try to help your mother. You say that your wife was opposed to you returning to Sri Lanka.
·In your statement dated 25 January 2018, you state that there was an error in your statutory declaration caused by a mix-up with your Migration Agent and your mother did have a heart attack but that is not the reason you returned to Sri Lanka.
This information is relevant because according to your ex-wife, you returned to Sri Lanka voluntarily to wind up your business and she did not oppose you returning there. This is different from your evidence, which is that you returned to Sri Lanka under duress, either because of your mother’s health condition or because she had been kidnapped, and your wife at the time opposed you returning there. These different versions of events raise doubts about the truthfulness of your evidence and may lead the Tribunal to consider that your claims lack credibility.
If we rely on this information in making our decision, it may lead the Tribunal to find that you returned to Sri Lanka voluntarily rather than under duress and your voluntary return undermines your claims to fear harm if you return to Sri Lanka in the foreseeable future. This may lead the Tribunal to consider that your claim to fear harm due to your connections to the LTTE are not genuine and that you do not have a well-founded fear of persecution if you return to Sri Lanka in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Sri Lanka.
What happened on your return to Sri Lanka
The particulars of the information are:
·In your statutory declaration declared 6 April 2017, you state that when you returned to Sri Lanka, you stayed with your mother at the hospital until she was discharged and then you took her to [Town 1]. You state that you helped her to recover and you stayed inside your house so that your presence would not be known to anybody.
·You state that on 27 December 2016, a group of men came to your mother’s house and threatened her and asked about her children. You were not at home when this happened. After this incident, your mother told you to leave Sri Lanka. You obtained assistance from your employer to arrange your departure and avoid problems at the airport and you left Sri Lanka.
·In the interview with the delegate, you stated that when you arrived in Sri Lanka you were met at the airport and taken to where your mother was being held. These men who took you asked for your passport but you said you would remain in Sri Lanka and the men could come to your house any time. The men beat you and told you to go home with your mother and stay there.
·You told the delegate that in May 2016, there was an explosion and you were arrested by the police and then released. You mother told you to leave Sri Lanka. You moved to [Area 1] and stayed with a distant relative in a remote location. You did not leave Sri Lanka sooner (until January 2017) because when you returned to Sri Lanka, your wife had left you and there was nothing drawing you back to Australia and you loved your mother and did not wish to leave her.
·In your ex-wife’s Protection visa application, she states that on return to Sri Lanka, you were stopped at Immigration and questioned about her whereabouts and your passport was confiscated. She stated that at the time she made her Protection visa application, your passport still had not been returned to you and you had been told that your passport would not be returned until she returned to Sri Lanka. She did not refer these problems you experienced on return being due to other reasons such as suspected links to the LTTE.
·Documents held by the Department of Home Affairs indicate that you returned to Australia on [date] January 2017, travelling on the same passport that you used to depart Australia on [date] March 2016, which suggests that if your passport was confiscated, it was returned to you.
This information is relevant because according to your ex-wife, the difficulties you experienced when you returned to Sri Lanka were due to the authorities’ interest in her, rather than your connection the LTTE. This is different from your evidence, which suggests that the difficulties you experienced when you returned to Sri Lanka were related to your and your family’s past connection to the LTTE. These different accounts of events raise doubts about the truthfulness of your evidence and may lead the Tribunal to consider that your claims lack credibility.
This information may lead the Tribunal to find that you did not experience problems when you returned to Sri Lanka. It may also lead the Tribunal to find that any problems you did experience were not related to an actual or perceived link to the LTTE. This may lead the Tribunal to consider that your claim to fear harm due to your connections to the LTTE are not genuine and that you do not have a well-founded fear of persecution if you return to Sri Lanka in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Sri Lanka.
Your involvement with the [Sport 1] Club
The particulars of the information are:
·In your statutory declaration declared 6 April 2017, you state that you moved to Colombo in July 2014 and while you were there you joined [Club 1]. [Mr A], son of the [politician Mr B], was also a member of [Club 1] and played [Sport 1] too. When you found out that he was suspected of killing another player in 2012 you stopped going to the Club.
·You state that in February 2015, you were arrested and detained by police, accused of being an LTTE supporter and questioned about why you joined the [Sport 1] Club.
·You state that in December 2015, you travelled to [Country 3] for work. You were detained at the airport on your return and questioned by the CID and taken to their headquarters. Your employer arranged your release.
·In your interview with the delegate, you gave evidence you had joined the [Sport 1] Team but when you learned that [Mr A] had murdered someone, you left the team. You gave evidence that in December 2015 when you returned from [Country 3], you got into a car with a driver who you assumed was taking you home but instead, the driver took you to people associated with [Mr A] and connected to your former [Sport 1] team. They were suspicious of you and asked you about why you had left Sri Lanka. They beat you and took you home and told your landlord you were linked to the LTTE. You, your wife and mother were evicted from your home.
·In her Protection visa application, your ex-wife does not mention these events.
This information is relevant because these claimed events happened while you were married to your ex-wife. According to the version of events you gave to the delegate, they resulted in you being beaten and you, your ex-wife and your mother being evicted from your home and experiencing problems from people connected to [Mr A], [politician Mr B]’s son. The fact that your ex-wife did not refer to these events in her Protection visa application raises a concern for the Tribunal about whether they are true.
This information may lead the Tribunal to find that the claimed events did not occur and you were not a person suspected of having links to the LTTE. This may lead the Tribunal to consider that your claims to fear harm due to your connections to the LTTE are not genuine and that you do not have a well-founded fear of persecution if you return to Sri Lanka in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Sri Lanka.
If the Tribunal does not accept your claims, you may not be entitled to a protection visa.
On 13 January 2023, the applicant responded to the Tribunal’s letter via a written statement. In his statement, the applicant did not make any comments or submissions about the validity of the non-disclosure certificate or the exercise of the Tribunal’s discretion. The Tribunal considers the non-disclosure certificate to be valid. The applicant’s responses to the information put to him by the Tribunal about his claims in its letter are referred to below where appropriate.
The applicant’s mental health
In his statutory declaration of 12 December 2022 and written statement dated 13 January 2023, in the context of explaining the discrepancies in his evidence about the circumstances surrounding his return to Sri Lanka in March 2016, the applicant states that when he talks about his past he gets stressed and traumatised because of what he has gone through in Sri Lanka. He says that he loses concentration and explains that this could be the reason that his explanations to his agent were confusing to her. He says that he tends to forget the dates and events and the order in which things happened in Sri Lanka.
The applicant has provided some medical evidence to the Tribunal about his high blood pressure which he says is exacerbated by stress, but he has not claimed or provided any medical evidence to indicate that he has a mental health issue. For example, he has not provided evidence to indicate that he has been receiving counselling or seeing a psychologist or other mental health professional. The Tribunal understands that recalling past events and participating in interviews and hearings can be stressful and traumatic for applicants and acknowledges that the passage of time can affect a person’s memory. The Tribunal has taken this into account in considering the applicant’s claims and evidence.
The Tribunal finds that the applicant is not suffering from a diagnosed mental health issue. The Tribunal does not accept that the applicant feeling stressed or confused or forgetful when talking about his past can account for all the discrepancies in the applicant’s written and oral evidence about his claims and considers that the nature and extent of many of the discrepancies call the applicant’s credibility into question, as explained below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Nationality
The applicant claims to be a citizen of Sri Lanka and provided to the Department a copy of his Sri Lankan passport issued [in] 2013. 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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As explained above, the Tribunal formed the preliminary view that based on the evidence before it, it could not be satisfied that the applicant’s claims are reliable and that he faces harm as a Tamil male with suspected links to the LTTE if he returns to Sri Lanka in the foreseeable future. The Tribunal informed the applicant in the hearing invitation that, on the evidence before it, it was unable to make a favourable decision. For this reason, the Tribunal invited the applicant to a hearing to give him the opportunity to give evidence and present arguments relating to the issues arising in his case. As explained above, on 13 December 2022, the applicant informed the Tribunal that he consented to the Tribunal making its decision on the papers. Accordingly, this matter has been determined on the evidence available to the Tribunal.
The Tribunal has before it the applicant’s written claims contained in various documents. The Tribunal also has a copy of the delegate’s decision and has listened to a recording of the applicant’s interview with the delegate. As the applicant declined his hearing invitation, the Tribunal has not had the opportunity to test the applicant’s claims with him in a hearing. Having considered all this material in detail, the Tribunal continues to have concerns about the substance and credibility of the applicant’s claims for the reasons explained below.
Arrests in 2007
In his statutory declaration dated 6 April 2017, the applicant states that he was arrested by police in May 2007, held in custody for three days and interrogated about his brother. He goes on to state that about two weeks later, he was arrested again and questioned by police because they suspected he and his brother were supporters of the LTTE. This time he was detained for nearly one month and was severely assaulted.
In the interview with the delegate, the applicant stated that the first time he was arrested and questioned by police in 2007 they did not suspect him of LTTE involvement but were only interested in his brother. He told the delegate that he was arrested again two weeks later and detained for two or three days, tortured, told to produce his brother and not to leave the area. He was then arrested for a third time two weeks after that, detained for three days and told to produce his brother.
These discrepancies in the applicant’s evidence about the number of times he was arrested, the length of time he was held and whether or not he was suspected by the police of being involved with the LTTE, raise concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Arrest in 2008 and contact with parents from 2007 to 2011
In his statutory declaration dated 6 April 2017, the applicant states that In November 2008 he was arrested and his father arranged his release from [City 1] police station by paying a bribe to officials in Colombo. He claims that in 2009, he started looking for a job in Colombo and his father found him some contacts. In his statutory declaration of 12 December 2022, the applicant reiterates that he was released from detention in November 2008 through his father’s connections.
In the interview with the delegate, the applicant stated that between 2007 and 2011, he did not have any contact with his parents because he was worried the authorities would be able to locate him through his phone activity and so he did not know what was happening with them during this time.
In the Tribunal’s view, the applicant’s statutory declarations clearly suggest that he did have contact with his parents during the period 2007 to 2011 because his father helped to arrange the applicant’s release from [City 1] police station in November 2008 and provided the applicant with some potential contacts to find work in 2009. This discrepancy raises concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Abduction in 2012 and becoming an informant
In the interview with the delegate, the applicant claimed that sometime in 2012 while walking to report at the police station, he was taken in a white van. His abductors wanted him to become a ‘spy’ and identify LTTE individuals. The applicant refused and was slapped and forced to sign a contract to become an informer. He was released the next day. The applicant did not mention this event in his original statutory declaration dated 6 April 2017, which is a detailed document. He also does not mention this event in his statutory declaration dated 12 December 2022.
Being abducted in a white van, detained, assaulted and asked to sign a contract and become a spy, seems to the Tribunal like a significant claim. The fact that the applicant only mentioned this claim for the first time in the interview with the delegate and did not repeat this claim subsequently raises a concern for the Tribunal about whether this event truly occurred. The Tribunal has not had the opportunity to question the applicant about this, however it raises further doubts for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Death of the applicant’s father in 2011
In his statutory declaration dated 6 April 2017 and interview with the delegate, the applicant claims that his father did not commit suicide as the authorities reported, but he was murdered in 2011 by the authorities. In his statutory declaration dated 6 April 2017, the applicant states that the family believe that his father was killed because the applicant’s brother fled Sri Lanka and sought refugee status in Australia. In the interview with the delegate, the applicant stated that he believes his father was killed because the applicant left the [City 1] area when he had been told in 2007 not to leave and the authorities thought he had fled Sri Lanka. Like the delegate, the Tribunal has concerns about the applicant’s suggestion that his father was killed in 2011 over something the applicant and/or his brother did in 2007 and 2006 (which is when his brother left Sri Lanka) particularly if, as the applicant claims on one version of events, he had had no ongoing contact with his father during this time. The Tribunal has not had the opportunity to question the applicant about his theory regarding his father’s death. This claim that the applicant’s father was murdered, without any probative evidence to support it, raises concerns for the Tribunal about the applicant’s claim that his father was a person of interest to the authorities and about the applicant’s credibility more broadly.
English course and further arrests
In his statutory declaration dated 6 April 2017, the applicant says he started attending an English course in [City 1] and that after two months, in March 2013, he was called by the [City 1] police for investigation. The police asked him about his brother and his father and implied that his father was a supporter of the LTTE. He was released after one week with the intervention of friends and the church pastor.
In his statutory declaration of 12 December 2022, the applicant says that towards the end of 2011, he was studying in English class and he was called to the police station and questioned about his brother and father. He was released on condition he report to the police daily. He goes on to state that in March 2013, he was questioned again by the [City 1] police about his father and brother and that he was accused of supporting the LTTE with the rest of his family and was detained for one week.
There are several discrepancies between these accounts which raise a concern for the Tribunal. First, in his 6 April 2017 statutory declaration, the applicant claims by implication that he started his English course in January 2013 (two months before March 2013). In his 12 December 2022 statutory declaration, he states that he was doing an English class at the end of 2011. Secondly, his claim that towards the end of 2011 he was questioned by the police about his father and brother (while studying in his English class) is only raised for the first time in his statutory declaration dated 12 December 2022. Thirdly, in his statutory declaration dated 6 April 2017, the applicant says that when he was questioned in March 2013 it was about his brother and father, and the police implied that his father was connected to the LTTE. He does not claim that the police accused him of having any LTTE connection during this questioning. In his statutory declaration dated 12 December 2022, the applicant states that during this questioning in March 2013, the police accused him personally of supporting the LTTE. These discrepancies in the applicant’s evidence, which the Tribunal has not had the opportunity to discuss with the applicant, raise concerns about the credibility of the applicant and the genuineness of his claims.
Involvement with [Club 1] in Colombo
In his statutory declaration declared 6 April 2017, the applicant states that he moved to Colombo in July 2014 and while he was there he joined [Club 1]. He claims that [Mr A], son of the [politician Mr B], was also a member of [Club 1] and played [Sport 1] too. When the applicant found out that [Mr A] was suspected of killing another player in 2012, he stopped going to the Club. The applicant claims that in February 2015, he was arrested and detained by police, accused of being an LTTE supporter and questioned about why he joined [Club 1] and why he came to Colombo. He was detained for four weeks and tortured.
In the interview with the delegate and in his statutory declaration dated 12 December 2022, the applicant claims that he was the only Tamil member of the team.
The applicant’s claim that he was the only Tamil member of a [Sport 1] team or club which included the (Sinhalese) son of the [politician, Mr B],[4] and which the applicant voluntarily joined and left, strongly suggests to the Tribunal that the applicant did not have a profile as a person of concern to the authorities and he was not considered to have any real or imputed connection to the LTTE at that time. The Tribunal has not had the opportunity to discuss this with the applicant, however, the applicant’s written and oral evidence raises concerns for the Tribunal about his credibility and the genuineness of his claims, including the claim that in February 2015 he was arrested and detained by the police, accused of being an LTTE supporter and questioned about why he joined [Club 1] and why he came to Colombo.
[4] Since independence, Sinhalese-led governments have dominated politics in Sri Lanka which has resulted in the marginalisation of Tamils: see DFAT Country Information Report Sri Lanka 23 December 2021. [source deleted] (accessed 31 January 2023).
As set out in the Tribunal’s letter to the applicant dated 19 December 2022, in the applicant’s statutory declaration dated 6 April 2017, he states that in December 2015 he travelled to [Country 3] for work. He states that he was detained at the airport on his return and questioned by the CID and taken to their headquarters. His Sinhalese employer arranged his release.
In the interview with the delegate, the applicant gave evidence that in December 2015 when he returned from [Country 3], he got into a car with a driver who he assumed was taking him home but instead, the driver took him to people associated with [Mr A] and connected to his former [Sport 1] team. They were suspicious of him and asked him about why he had left Sri Lanka. They beat him and took him home and told his landlord that he was linked to the LTTE. The applicant, his wife and mother were evicted from their home.
The discrepancies between what the applicant claims happened after he arrived at the airport on return from [Country 3] as described in his statutory declaration dated 6 April 2017 compared with what he told the delegate in the interview, including who detained and questioned him, where this happened and the circumstances of his release, raise concerns for the Tribunal about the applicant’s credibility.
Further, as noted in the Tribunal’s letter dated 19 December 2022, in her Protection visa application, the applicant’s ex-wife does not mention these events. As explained in its letter to the applicant, the Tribunal considers this to be relevant because these claimed events happened while the applicant was married to his ex-wife. According to the version of events given to the delegate by the applicant, these events resulted in him being beaten and he, his ex-wife and his mother being evicted from their home and experiencing problems from people connected to [Mr A], the [politician Mr B]’s son. In the Tribunal’s view, these consequences seem significant and something that a person seeking protection would refer to if such events truly took place. The fact that the applicant’s ex-wife did not refer to these events in her Protection visa application raises a concern for the Tribunal about whether they truly occurred.
In his response to the Tribunal’s letter dated 13 January 2023, the applicant does not address the Tribunal’s concerns about these events directly. He states that:
…
12. I do not understand why I should answer her [his ex-wife’s] claims on her protection visa. I do not recall any issues she had with anyone that could get her in trouble if she went back to Srilanka. She was an [occupation] who got her visa and came to Australia with no issues.
13. The Statement from my ex-wife is made to protect herself; therefore, I do not know under what circumstances she has filed it and why she has not mentioned it. She might even forget these events or not be said on purpose. They may not be a concern for her, but from my position, it was important to tell all details as I remembered.
14. I stand by everything I said verbally and in my statement. I can't be responsible for what she said or didn't say in her claims. She must have mentioned only the facts that apply to her for her benefit. I don't think it is fair to depend on my ex-wife's statement and hold it against me. I know it is not safe for me to return to Srilanka. Everything I mentioned in my statement is everything that happened.
The Tribunal has considered the applicant’s response however this does not allay its concerns. Based on the discrepancies in the applicant’s own account of events, the fact that these events were not mentioned by the applicant’s ex-wife and the Tribunal’s concerns more broadly about the applicant’s credibility, this raises concerns for the Tribunal about whether these claimed events were fabricated by the applicant for the purposes of his protection visa application.
Circumstances leading to the applicant’s return to Sri Lanka in March 2016
In his statutory declaration dated 6 April 2017, the applicant states that on 28 February 2016, he got a call saying his mother had suffered a heart attack and was taken to the hospital in [Town 1]. The applicant told his wife he was going to help his mum. His wife was against him going back to Sri Lanka and she threatened to leave him. The applicant had a multiple entry visa so he knew he could come back to Australia after his mum got better.
In the interview with the delegate, the applicant gave evidence that soon after his arrival in Australia with his wife in January 2016, he received a call from his mother’s phone and the person calling said his mother had been taken and unless the applicant returned to Sri Lanka his mother would be killed. The applicant’s wife thought it was too dangerous for the applicant to return but he went anyway. In the interview, as reflected in the delegate’s decision, the delegate questioned the applicant about this major discrepancy in his evidence and expressed concerns about his explanation and his credibility.
As referred to in paragraphs 11 and 12 above, after the interview, the applicant and his representative made written submissions to the delegate explaining that the reason for the discrepancy in the applicant’s evidence about why he returned to Sri Lanka were due to a mix-up or misunderstanding between the applicant and his representative. The applicant reiterates this explanation in his statutory declaration made 12 December 2022. Like the delegate, the Tribunal has concerns about how and why such a detailed and coherent written version of a particular event could have been prepared in error by the applicant’s representative if it were not based on the applicant’s instructions. The applicant states in his statutory declaration made 12 December 2022 that because he gets stressed talking about his past, perhaps his explanations to his representative were confusing to her, however, the Tribunal notes that he did not suggest that this confusion had resulted in other incorrect claims being included in his original statutory declaration.
The Tribunal has not had the opportunity to discuss its concerns with the applicant about these two completely different versions of events and his explanation for how this happened. Further, the Tribunal has not had the opportunity to question the applicant about what he says is the true version of what happened, including why he was of such interest or concern to these people that they kidnapped his mother in order to force him to return to Sri Lanka. The Tribunal has not had the opportunity to ask the applicant about what it was these people wanted from him upon his return, or the circumstances surrounding the later heart attack he claims his mother suffered, and to consider his evidence in this regard. Based on the evidence before it, the Tribunal has concerns about the applicant’s explanations for the discrepancies in his evidence about why he returned to Sri Lanka, as well as the credibility of the claims themselves. Combined with its concerns set out above about the applicant’s credibility more broadly, this raises further concerns for the Tribunal about the applicant’s credibility and the truthfulness of his claims.
The Tribunal raised this discrepancy with the applicant in its letter dated 19 December 2022. It noted that the applicant’s ex-wife stated in her Protection visa application that the applicant had a business and that after arriving in Australia, he had to return to Sri Lanka to wind up his business. His ex-wife did not mention anything about the applicant’s mother having a heart attack or being kidnapped. The Tribunal put to the applicant that this information was relevant because according to his ex-wife, he returned to Sri Lanka voluntarily to wind up his business and she did not oppose him returning. The Tribunal explained that these different versions of events raise doubts about the truthfulness of the applicant’s evidence and may lead the Tribunal to consider that his claims lack credibility. Further, it explained that it may lead the Tribunal to find that the applicant returned to Sri Lanka voluntarily rather than under duress which undermines his claims to fear harm if he returned to Sri Lanka in the foreseeable future.

In his statement dated 13 January 2023 in response to the Tribunal’s letter, the applicant states that:
…
1. After we separated, my ex-wife was very angrangryh me. She knew she had to apply for a visa to remain in Australia and the only option for her was to apply for a protection visa. She had no history or mistreatment experienced as I did. She knew all about my family and what I had gone through. I don't expect she will say or do anything to favour me; if given an opportunity, she will ensure that I will never get permanent status here in Australia.
2. When I left Sri Lanka, I was [Occupation 2] at [Employer 1], taking care of [specified] sections, which is true. At the same time, I was also called to perform the duties of the Manager. The visitor visa application was prepared by my wife, and she must have completed her with the understanding that it was better to mention my position as the Manager. I completed my application for a protection visa with the official designation I held as the [Occupation 2].
3. l did not have any business whatsoever in Sri Lanka. She knew that very well. If I had another business, my wife would have mentioned that in my visitor visa application. Her statement that I returned to Sri Lanka to wind up my business is untrue. That was a deliberate lie.
4. The main reason for our separation was that I didn't listen to her and rushed to Sri Lanka against her word. She did everything to get the visas to come to Australia, and she was scared that if went back and were unable to return to Australia, she would not be able to continue living in Australia. She was hoping to claim refugee status as my wife because she knew very well about the issues I had in Sri Lanka before we left. Without me, she would have no claims for protection.
5. After coming to Australia, I would never have taken the risk of returning to Sri Lanka if not for the emergency I faced.
6. The fact that my mother did suffer a heart attack in Sri Lanka is true. But it happened after I went to Sri Lanka. So, before I left, my wife didn't know about my mum’s health condition. The main reason for my return was the call I got and the fear I felt for my mum's safety. My ex-wife never liked my family and my mum. I don't expect her to say anything helpful to me in her statement for her protection.
7. My evidence given at the interview was correct and true. Only at the interview, I realised the events and dates had got mixed up. It was not intentional. Therefore, after the interview, f submitted an explanation for the confusion and an update on why the mix-up happened with the agent, and I do apologise.
8. Whenever I try to remember what happened to me in Sri Lanka, I get very agitated and stressed. I lose concentration. I lose track of dates and events. Because of this uncertain state of mind, I have always experienced, my agent had difficulty getting my instructions from time to time. When stressed, I tend to forget the dates and events and the order in which things happened in Sri Lanka.
9. What I have mentioned about my mother's kidnapping is true. My mother did have a heart attack, but that is not why I returned to Sri Lanka. She was hospitalised after I went to Sri Lanka. As my ex-wife mentioned, returning to wind up a business isn't the reason either. It is only because I was told to return as they kidnapped my mother. My wife was strongly opposing my departure to Srilanka. As she said she left me after I returned to Srilanka.
…
The Tribunal has considered the applicant’s response but for the reasons set out above, his response does not allay the Tribunal’s concerns about his credibility and the genuineness of his claims.
Events during the applicant’s return to Sri Lanka
According to the applicant’s statutory declaration made 6 April 2017, on 5 March 2016, he returned to Sri Lanka because his mother had suffered a heart attack and he went straight to the hospital. The applicant stayed with his mother at the hospital until she was discharged and he took her to [Town 1]. The applicant stayed with her and helped her to recover. He stayed inside his house so his presence would not be known. He knew he could not leave his mother and return to Australia. There was a military presence in [City 1] looking for LTTE suspects. On 27 December 2016, a group of men came to the applicant’s house and threatened his mother about giving information about her children. Luckily, the applicant was not home. The applicant’s mother told him to get out of [City 1] and to leave Sri Lanka. The same day, he left [City 1], went to his employer’s home and asked for help to get to the airport. The applicant’s employer called a friend of his in the immigration section at the airport so the applicant could get through immigration without a problem.
In the interview with the delegate, the applicant gave evidence that when he arrived back in Sri Lanka after receiving a call that his mother had been kidnapped, he was met at the airport and taken to where his mother was being held. The men asked the applicant for his passport but the applicant assured them he would remain in Sri Lanka with his mother. The men beat the applicant and then told him and his mother to go home and remain there. The applicant took his mother to [City 1]. In May 2016, there was an explosion. The applicant and others were arrested by police and questioned before being released. The applicant’s mother urged the applicant to leave Sri Lanka to preserve his life. The applicant moved to [Area 1] and stayed with a relative in a remote location. He used his visa to leave Sri Lanka and return to Australia. When the applicant returned to Sri Lanka on that trip he thought he would not return to Australia because his wife had left him and he had nothing drawing him to Australia, and he did not want to leave his mother.
The Tribunal has not had the opportunity to question the applicant about discrepancies in his own evidence relating to what happened on his return to Sri Lanka, or differences with his ex-wife’s description of what happened which is set out below. These discrepancies in the applicant’s evidence include who met him at the airport and where he went after that to meet his mother, whether he was arrested and questioned by police, the circumstances of his release, whether his mother was threatened by men to give information about her children, who the applicant lived with during this visit and whether he spent time in hiding and where, whether he intended to return to Australia and whether he required assistance at the airport to depart Sri Lanka. The Tribunal also has questions about why the applicant remained in Sri Lanka for so long (March 2016 to January 2017) if he genuinely feared the authorities and considers that his statement to the delegate that when he returned to Sri Lanka he thought he would not return to Australia because he had nothing drawing him back there undermines his claim to fear harm in Sri Lanka.
As noted in the Tribunal’s letter to the applicant dated 19 December 2022, in his ex-wife’s Protection visa application she states that on return to Sri Lanka, the applicant was stopped at Immigration and questioned about her (his ex-wife’s) whereabouts and the applicant’s passport was confiscated. She stated that at the time she made her Protection visa application, the applicant’s passport still had not been returned to him and he had been told that his passport would not be returned until she returned to Sri Lanka. She did not refer to the problems the applicant experienced on his return to Sri Lanka being due to reasons such as his or his family’s suspected links to the LTTE.
In his response dated 13 January 2023, the applicant states that:
…
10.My ex-wife's statement is made so she can protect herself. I disagree with what she is saying. She was an [occupation] who obtained her visa and came to Australia with no issue. Why would I be stopped at the airport and ask for her details? If my passport was confiscated for the reason she mentioned, then the airport authorities would never have returned it to me until she returned to Sri Lanka, which she never did. How did I return to Australia using the same passport if they confiscated my passport?
11. My passport was never confiscated upon arrival. I am not aware of any problems she had in Srilanka other than the problems from the authorities that are linked to me. Also, I'm not sure how liable her statement is, as it is impossible to return to Australia without a passport if it has been confiscated.
…
The Tribunal has considered the applicant’s response, however it does not allay the Tribunal’s concerns. Even if the events did not occur as claimed by the applicant’s ex-wife, there are still significant discrepancies in the applicant’s own written and oral evidence about what occurred when he returned to Sri Lanka which raise concerns for the Tribunal about the applicant’s credibility and the genuineness of his claims.
Findings
The Tribunal has carefully considered all the applicant’s claims and all the evidence before it. For the reasons set out above, the Tribunal finds as follows.
Based on the evidence before it, the Tribunal accepts that the applicant is a Tamil male who was born in [Country 1] in [year]. The Tribunal accepts that in Sri Lanka, the applicant has his mother and two sisters. The Tribunal accepts that the applicant has another sister who lives in [Country 2] and a sister and brother who live in Australia and are Australian citizens.
The Tribunal accepts that the applicant’s older brother arrived in Australia in 2006 and was granted refugee status the same year. The Tribunal is prepared to accept that as a young Tamil male in Sri Lanka during the civil war, the applicant’s brother was detained by the Sri Lankan authorities and mistreated and that the applicant’s father advised him to flee Sri Lanka, which he did. The Tribunal accepts that the applicant’s brother was not a member or supporter of the LTTE. The Tribunal does not accept that the fact the applicant’s brother was granted asylum in Australia in 2006 lends weight to the applicant’s claims for protection, particularly given he left Sri Lanka before the events occurred which the applicant relies on for his claims, or outweighs the Tribunal’s concerns about the credibility of the applicant’s claims.
Based on the evidence before it, the Tribunal finds that the applicant did not experience harm in Sri Lanka prior to 2007.
Based on the evidence before it, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that in 2007, the applicant was questioned by the police about his brother. However, based on the discrepancies in the applicant’s evidence, the Tribunal does not accept that in 2007 the applicant was held in custody twice; first for three days and then for one month, or that he was held in custody three times and that he was held for two to three days on the second and third occasions. The Tribunal does not accept that the applicant was assaulted by the police while he was custody as it does not accept he was held in custody. The Tribunal does not accept that the police questioned the applicant because they suspected him of being a supporter of the LTTE.
Based on the evidence before it, the Tribunal does not accept that the applicant had no contact with his parents between 2007 and 2011 because he was worried that the authorities could locate him through his phone activity, or for any other reason. Based on the discrepancies in the applicant’s evidence and the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that the applicant was arrested in November 2008 and his father arranged his release from [City 1] police station by paying a bribe to officials in Colombo. The Tribunal is prepared to accept that the applicant started looking for a job in Colombo in 2009 and his father assisted him with some contacts.
Based on the evidence before it, including the fact that the applicant only made this claim in the interview with the delegate and not prior or since, the Tribunal does not accept that in 2012 the applicant was taken in a white van and his abductors asked him to become a spy and identify LTTE individuals. It follows that the Tribunal does not accept that the applicant refused to co-operate, that he was slapped and forced to sign a contract to become an informer and that he was released the next day. The Tribunal does not accept that the applicant was ever an informer or spy for the authorities.
The Tribunal accepts that the applicant’s father died in 2011. Based on the evidence before it, the Tribunal does not accept that the applicant’s father was killed by the authorities because the applicant’s brother fled Sri Lanka and sought asylum in Australia or because the applicant left [City 1] in 2007 when he had been told not to, or for any other reason. Based on the evidence before it, the Tribunal is not satisfied that the applicant’s father was a person of interest to the authorities due to links with the LTTE or that this played a part in his death.
The Tribunal is prepared to accept that the applicant attended English classes in Sri Lanka sometime in or after 2011. Based on the evidence before it, the Tribunal does not accept that towards the end of 2011 when he was studying his English class, the applicant was called to the police station and questioned about his father and brother and released on the condition he report to the police daily. The Tribunal does not accept that in March 2013, he was questioned again by the police about his father and brother and he was accused of supporting the LTTE with the rest of his family and was detained for one week. The Tribunal also does not accept that in March 2013, about two months after he started his English class, the applicant was detained for one week by the police and questioned about his brother and father and that the police implied his father was a supporter of the LTTE. It follows that the Tribunal also does not accept that the applicant’s release was arranged by friends and the church pastor.
The Tribunal is prepared to accept that sometime in late 2013 or early 2014, the applicant moved to Colombo and found a job there [and] got married to the person who is now his ex-wife. The Tribunal is prepared to accept that the applicant joined [Club 1] and that [Mr A], the son of the [politician, Mr B], was a member of the club. The Tribunal is prepared to accept that the applicant was the only Tamil member of his team. The Tribunal accepts that the applicant left the club voluntarily around six months later. For the reasons explained above, the Tribunal finds that the applicant was not a person of adverse concern to the authorities at this time and that he did not have a profile as a person with a real or imputed connection to the LTTE. Given the Tribunal’s finding that the applicant did not have a profile as a person with a real or imputed connection to the LTTE at this time, and the Tribunal’s finding that the applicant joined and left the [Sport 1] Club voluntarily, the Tribunal does not accept that in February 2015 he was arrested and detained by the police, accused of being an LTTE supporter, questioned about why he joined the [Sport 1] Club and why he came to Colombo, or that he was detained for four weeks and tortured during this time.
The Tribunal accepts that the applicant travelled to [Country 3] in December 2015. Based on the discrepancies in the applicant’s evidence about what happened to him upon his return to Sri Lanka, the Tribunal does not accept that he was detained at the airport, questioned by CID and taken to their headquarters, and that his employer arranged his release. The Tribunal also does not accept that he got into a car with a driver who, rather than taking him home, took him to people associated with his [Sport 1] team and [Mr A] who questioned him about why he left Sri Lanka, beat him, took him home and told his landlord that he was linked to the LTTE. The Tribunal also does not accept that as a result, the applicant, his ex-wife and his mother were evicted from their home.
The Tribunal accepts that the applicant returned to Sri Lanka from [date] March 2016 to [date] January 2017. Based on the Tribunal’s concerns set out above about the discrepancies in the applicant’s evidence about the circumstances that led to his return and what happened during his return, the Tribunal does not accept the applicant’s claims in this regard. The Tribunal does not accept that the applicant returned to Sri Lanka on [date] March 2016 because his mother had suffered a heart attack or because he received a call saying his mother had been kidnapped and that she would be killed if he didn’t return. It follows that the Tribunal does not accept that the applicant returned to Sri Lanka under duress and finds that he returned voluntarily. The Tribunal is prepared to accept that the applicant did not return to Sri Lanka to wind up his business.
Given the Tribunal does not accept that the applicant returned to Sri Lanka because his mother had suffered a heart attack, the Tribunal does not accept that he went straight to the hospital and when his mother was discharged, he took her to [Town 1] and stayed with her to help her recover. The Tribunal does not accept that the applicant stayed inside the house so he would not be discovered by the authorities. The Tribunal does not accept that on 27 December 2016, a group of men came to the house and threatened the applicant’s mother to give information about her children, or that the applicant avoided these people because he was not home. The Tribunal does not accept that the applicant’s mother told him to get out of [City 1] and leave Sri Lanka, that he sought help from his employer to get to the airport and that his employer arranged for a friend in the immigration section at Colombo airport to facilitate the applicant’s departure.
Given the Tribunal does not accept that the applicant returned to Sri Lanka because he received a call saying his mother had been kidnapped and that she would be killed if he didn’t return, the Tribunal does not accept that he was met at the airport in Sri Lanka and taken to where his mother was being held. The Tribunal does not accept that the applicant was asked to hand over his passport. The Tribunal does not accept that the applicant was beaten and the people holding his mother told her and the applicant to go home and remain there. The Tribunal does not accept that in May 2016, the applicant was arrested by police in [City 1] and questioned about an explosion. The Tribunal does not accept that the applicant’s mother urged him to leave Sri Lanka to save his life. The Tribunal does not accept that the applicant moved to [Area 1] and stayed with a relative in a remote location before returning to Australia.
The Tribunal is prepared to accept that on return to Sri Lanka, the applicant was not stopped at Immigration and questioned about his ex-wife. The Tribunal is prepared to accept that his passport was not confiscated and that the applicant was not told his passport would not be returned until his ex-wife returned to Sri Lanka.
The Tribunal finds that the applicant was never a member or supporter of the LTTE. Based on all the evidence and its findings above, the Tribunal finds that the applicant was not considered by the Sri Lankan authorities to be a person of concern due to any real or perceived connection to the LTTE while he was in Sri Lanka. Based on the evidence before it, the Tribunal finds that this situation has not changed since he left Sri Lanka. There is no evidence before the Tribunal to suggest that the applicant has engaged in any conduct since he has been in Australia to change this situation.
The Tribunal does not accept that the applicant fled Sri Lanka for the reasons claimed.
Does the applicant meet the refugee criterion?
The applicant claims that he fears being harmed or killed if he returns to Sri Lanka for the following reasons:
·     his imputed political opinion as a supporter of the LTTE or Tamil separatist groups, due to his father being killed because he was suspected of being an LTTE supporter together with his brother fleeing Sri Lanka;
·     as a Tamil from the Northern Province of Sri Lanka he will be perceived to be involved or associated with the LTTE; and
·     as a failed Sri Lankan asylum seeker.

The Tribunal notes that the applicant has not provided country information in support of his claims. While he has mentioned certain events and circumstances in Sri Lanka in his written statements, he has not provided any references to support his assertions and so the Tribunal does not accept that information. The Tribunal has not had the opportunity to discuss its own country information with the applicant as he declined his invitation to attend a hearing.
The Tribunal has considered the applicant’s claim that he will be harmed if he returns to Sri Lanka due to his imputed political opinion as a supporter of the LTTE or Tamil separatist groups. The applicant’s claim is based on his claim that his father was killed because he was suspected of being an LTTE supporter and his brother fled Sri Lanka in 2006. As set out above, based on the evidence before it, the Tribunal is not satisfied that the applicant’s father was a person of interest to the authorities due to links with the LTTE. Further, as set out above, the Tribunal does not accept that the applicant’s father was killed by the authorities, including due to any links with the LTTE or due to any actions of the applicant’s brother or the applicant himself. Therefore, the Tribunal does not accept that the applicant will be imputed with a political opinion in support of the LTTE or Tamil separatist groups as a result of his father’s death. The Tribunal also does not accept that the applicant will be imputed with a political opinion in support of the LTTE or Tamil separatist groups simply due to the fact that his brother left Sri Lanka in 2006. The Tribunal has also found above that the applicant has never been considered by the Sri Lankan authorities to be a person of concern due to any real or perceived connection to the LTTE, which strengthens the Tribunal’s view. Accordingly, the Tribunal does not accept the applicant’s claim. In light of this, the Tribunal finds that if the applicant returned to Sri Lanka in the foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the applicant’s claim that as a Tamil from the Northern Province of Sri Lanka he will be perceived to be involved or associated with the LTTE and he will be harmed as a result. Country information indicates that the Sri Lankan Constitution forbids discrimination on the ground of race, religion, language, caste, political opinion and other grounds.[5] Ethnicity was certainly an issue during the civil war and remains a sensitive issue in Sri Lanka today.[6] These days, Tamils comprise most of the population in the Northern Province, however many Tamils also live in Colombo, looking for greater economic opportunities and many Tamils moved to Colombo during the war to escape the fighting.[7] Tamils are the second largest ethnic group in Sri Lanka and Tamil political parties are active.[8] DFAT assesses that Tamils in Sri Lanka face a low risk of official or societal discrimination based on their ethnicity[9] and there is no official discrimination on the basis of ethnicity in public sector employment.[10] Country information does not support the view that the Sri Lankan government views the entire Tamil cohort as holding separatist views or being politically active in any meaningful way.[11] DFAT assesses that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.[12] Based on the country information referred to above, the Tribunal does not accept that as a Tamil from the Northern Province of Sri Lanka, or as a Tamil male from the Northern Province of Sri Lanka, the applicant would be suspected of being, or considered to be, a member or supporter of the LTTE. Further, the Tribunal has found above that the applicant has never been considered by the Sri Lankan authorities to be a person of concern due to any real or perceived connection to the LTTE. Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the foreseeable future.
[5] DFAT Report 3.1.
[6] DFAT Report 3.1.
[7] DFAT Report 3.2.
[8] DFAT Report 3.4.
[9] DFAT Report 3.1–3.3.
[10] DFAT Report 3.6.
[11] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism, June 2021, 2.4.2.
[12] DFAT Report 3.13.
The Tribunal has considered the applicant’s claim that he faces harm if he returns to Sri Lanka as a failed asylum seeker. The evidence before the Tribunal indicates that in both January 2016 and January 2017 the applicant departed Sri Lanka legally from Colombo airport using his own passport. The Tribunal accepts this. This being the case, the Tribunal finds that the applicant would not be considered to have committed an offence under the Sri Lankan Immigrants and Emigrants Act (1948) which makes it an offence to depart Sri Lanka other than via an approved port of departure without a valid passport. The DFAT Report states that returnees who departed Sri Lanka legally are not required to face a court as no offence under the Immigrants and Emigrants Act (1948) applies.[13] The Tribunal finds this is the case for the applicant.
[13] DFAT Report 5.21.
In relation to unsuccessful asylum seekers who return to Sri Lanka, the DFAT Report states as follows:
Exit and Entry Procedures
5.17 Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18 DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19 The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
Based on the DFAT Report, the Tribunal accepts that on return to Sri Lanka, the applicant would be subject to an interview and have his identity confirmed. Based on the evidence before it, the Tribunal finds that the applicant does not have a criminal or terrorist background, he is not subject to outstanding court orders, arrest warrants or criminal matters and the country information indicates he would not be detained or mistreated during processing at the airport. Accordingly, the Tribunal finds that if the applicant returned to Sri Lanka in the foreseeable future he would not face a real chance of serious harm arising from his circumstances as a failed asylum seeker.
The Tribunal has also considered the applicant’s accepted claims on a cumulative basis. This is that the applicant is a Tamil man from the Northern Province of Sri Lanka who would return to Sri Lanka as an unsuccessful asylum seeker. Considering the applicant’s claims on a cumulative basis, for the reasons discussed above, the Tribunal finds that he would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the foreseeable future.
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 applicant returns to Sri Lanka now or in the foreseeable future that he 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.

100. Therefore, the Tribunal is not satisfied that the applicant has 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 the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
101. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
102. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[14] for the same reasons as those set out above, the Tribunal finds that the applicant does not 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 applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[14] MIAC v SZQRB [2013] FCAFC 33.
Conclusion
103. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

106. The Tribunal affirms the decision not to grant the applicant a protection visa.
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 1098

2 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice