1804929 (Refugee)

Case [2023] AATA 2841

1804929 (Refugee) [2023] AATA 2841 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nizam Jazeel Camazy Nijamudeen (MARN: 1382750)

CASE NUMBER:  1804929

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Sheridan Lee

DATE:30 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2023 at 4:24pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – Muslim – fear of extremist Buddhist group – Bodhu Bala Sena (BBS) – threatened by family of son’s partner – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 116, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
EZC18 v MHA [2019] FCA 2143
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZAAJ v MIBP [2015] FCA 478
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZDCD v MIBP [2019] FCA 326
SZSPT v MIBP  [2014] FCA 1245
SZTES v MIBP [2014] FCCA 1765
SZTGM v MIBP (2017) 262 CLR 362

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant is a [age]-year-old Muslim man from Colombo, Sri Lanka. He speaks, reads and writes in Sinhalese and Tamil and self-identified as a Sri Lankan Moor. He operated a private company in Colombo called [Company 1] from May 2000 to August 2015. Prior to arriving in Australia, the applicant travelled to [Country 1], [Country 2], [Country 3] and [Country 4] for business on several occasions between 2013 and 2015.

  3. The applicant first arrived in Australia [in] August 2015 on a Subclass 600 Visitor Visa. He had previously been refused a visitor visa on 9 September 2014. The applicant applied for a protection visa on 10 September 2015 after he arrived in Australia.

  4. The applicant was born in the capital, Colombo. His wife, daughter and youngest son remain in Colombo. The applicant’s eldest son travelled with him to Australia, however he returned to Sri Lanka after his separate protection application was refused in 2018. The applicant claimed to be unaware of his eldest son’s whereabouts since his return to Sri Lanka.

  5. The applicant was represented in relation to the review.

  6. The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations.…

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1804929 (Refugee) [2023] AATA 2841
Case
[2023] AATA 2841
Decision Date

CaseChat Overview and Summary

The applicant, a Muslim man from Sri Lanka, sought a protection visa, claiming he feared persecution due to his religion and his son's relationship with a Sinhalese Buddhist woman. The dispute centred on whether Australia had protection obligations towards him, requiring an assessment of the credibility of his claims and their alignment with the applicable legal framework. The matter was heard by Sheridan Lee.

The court was required to determine if the applicant was a person to whom Australia owed protection obligations. This involved assessing whether he had a well-founded fear of persecution for reasons of his religion or membership of a particular social group, as defined by the Migration Act 1958. Additionally, the court had to consider whether, as a necessary and foreseeable consequence of his removal to Sri Lanka, there was a real risk that he would suffer significant harm, encompassing the complementary protection criterion.

The court accepted that the applicant was a Muslim from Colombo and acknowledged his diagnosed mental and physical health conditions, noting that these could impact memory recall. However, after a cumulative examination of the evidence, the court found the applicant's specific claims to be far-fetched and unsubstantiated. While accepting that Muslims in Sri Lanka experience discrimination and that extremist Buddhist groups exist, the court concluded that the applicant had not demonstrated a real chance of persecution or significant harm personally, as opposed to risks faced by the general population. Crucial to this finding were inconsistencies and implausibilities in the applicant's account, including the alleged actions of individuals and groups, the circumstances of his son's return to Sri Lanka, and the lack of evidence for targeted harm. The court also found that the applicant's health conditions did not meet the threshold for significant harm under the Act, as there was no evidence of intentional infliction of suffering or arbitrary deprivation of life by Sri Lankan authorities or the medical profession, nor was the risk of inadequate healthcare faced by him personally.

Consequently, the court affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under section 36(2) or section 36(2)(aa) of the Migration Act 1958.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.CLAIMS AND EVIDENCE The applicant applied for protection on 10 September 2015. Accompanying the application for protection form was a written statement that contained the following information:·The applicant sent his eldest son, [Mr A] from Sri Lanka to London to study from [February] 2011 to [May] 2012.·[Mr A] started a relationship with a Singhalese Buddhist girl from Sri Lanka ([Ms B]) while he was living in London. The relationship continued when the couple both returned to Sri Lanka. [Ms B]’s father discovered their relationship when they were seen together at Majestic City, Bambalapitiya.·[Ms B]’s father visited the applicant’s home and threatened the lives of his family. [Ms B]’s father was an army man.·One week after, [Ms B] was admitted to [hospital] for treatment after making an attempt on her life.·[Ms B] and [Mr A] travelled to a friend’s home in [the Kandy district] without the applicant’s knowledge. This caused more trouble for the family.·[Ms B]’s father, mother and a Buddhist monk visited the applicant’s home in around September 2013 and again threatened to kill the family. The applicant managed to convince [Mr A] and [Ms B] of the danger and they returned home. Nevertheless, the danger to the applicant’s family continues.·As a result of the threat, the applicant suffered a severe ‘heart stroke’ and was admitted to [Hospital 1] on 11 November 2013. He underwent heart surgery.·Members of the Bodhu Bala Sena (BBS) wanted to harm the applicant in Sri Lanka because he is Muslim and because he had an expanding business running [a Product 1] factory. Racist monks and supporters of [Ms B]’s family destroyed the factory. The applicant had to live in hiding in Colombo.·The applicant was owed about one million Rupees by an individual named [Mr C] who was a strong supporter of former member of parliament, Duminda Silwa. The applicant demanded the repayment of the money and [Mr C] threatened to have him and his son arrested for drug trafficking. [Mr C] and [Ms B]’s father hid drugs in the applicant’s factory and brought the narcotic bureau to make an arrest. They escaped arrest because they were not home when the bureau went to the factory (the statement was unclear as to whether the home and factory were at the same location).·The applicant expressed the belief that Duminda Silwa was a drug dealer and main suspect for the murder of another politician named Mr Baratha Luxman Premchandra.·The applicant received a threatening phone call from an unknown person. The caller accused the applicant of trying to convert Buddhist women to Islam. The caller said he would defend Buddhism at any cost. The applicant’s son also received threatening phone calls.·The applicant’s family were scared and decided to live in a different house.·One morning [Mr A] was going to mosque for morning prayers when he was almost stabbed. The assailants were scared away when people from the mosque came out to assist.·The police force in the applicant’s local area of [Suburb 1] are mostly Sinhala Buddhists. Minority communities cannot expect justice.·After a discussion with the family, it was decided that the applicant and his son would leave Sri Lanka for the safety of the family. The applicant said that his first application for a visa to leave Sri Lanka was refused.·The applicant then met an agent named [Mr E] and told them of their life-threatening situation. [Mr E] arranged for them to travel to Australia on visitor visas.·The applicant expressed fear that if he returned to Sri Lanka he would be harmed or killed by [Mr C], BBS or [Ms B]’s father. He noted that there is a hatred of Muslim people in Sri Lanka.

Decision

Reasons for decision

I accept that extremist Buddhist groups, such as the BBS, have targeted the Muslim community in the past. Social media was utilised to spread negative commentary against Muslims and other minorities, particularly following the Easter bombings perpetrated by local Islamic groups in 2019. Buddhist extremists advocated for a boycott of Muslim-owned shops and businesses. Sources from within the Muslim community told DFAT Muslims did not receive adequate state protection from the BBS and other extremist Buddhist groups. DFAT was not aware of any recent acts of violence that resulted in a lack of state protection at the time of the report in December 2021. At the hearing, the applicant gave evidence that some Muslims were prevented from gathering publicly in Colombo for Iftar in 2023 by the police. I accept that celebrations were interrupted by police, however reports suggest that the event proceeded free from violence.[4] The applicant put forward no examples of recent violence targeting the Muslim community in Sri Lanka.[4] See, eg, Shaheid, F, ‘The interfaith Iftar 2023,’ The Morning, published on 30 May 2023, accessed at >As discussed with the applicant, Sri Lanka offers universal free health care. There are discrepancies in the quality of care and facilities between urban and rural areas. However, the applicant is from the capital, Colombo. I appreciate that there was difficulty accessing medication during the recent financial crisis faced by the country and as highlighted by the applicant at the hearing, many doctors have migrated abroad.[5] I understand that the applicant would benefit from access to medical treatment available in Australia. However, DFAT did not report that medical care would be discriminatorily withheld, and the applicant did not submit any evidence to support such a finding.[5] The Economist, ‘Middle-class Sri Lankans are fleeing their country’, 30 March 2023, accessed at >While I accept that discrimination against Muslims occurs in Sri Lanka, for the reasons below, I find on cumulative examination that the applicant’s specific claims were farfetched and unsubstantiated. I do not accept that the applicant’s son had a relationship with a woman named [Ms B] or that the applicant was threatened by a man named [Mr I], or an unknown person over the telephone, who was concerned the family would convert a Buddhist woman to Islam. I do not accept that the applicant was targeted by [Mr I] or extremist Buddhist groups working with [Mr I].The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[6][6] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.I have considered the possible impact of the applicant’s mental health on his ability to recall specific details in respect to his claims. And while I accept that it may be possible for vulnerable applicants to have difficulty recalling information from the past, I found aspects of the applicant’s evidence contradictory and unconvincing. The identified issues were too fundamental to be fully explained by his diagnoses. For example:·The applicant expressed concern that [Mr I] would cause trouble for him when he was trying to depart Sri Lanka. He alleged that he provided money to his travel agent in order to bribe officials at the airport. However, the applicant also gave evidence that [Mr I] threatened to harm the applicant if he did not keep his son away from [Ms B]. In the circumstances, it is difficult to understand why [Mr I] would make it hard for the applicant and [Mr A] to leave the country.·The applicant could not explain how [Ms B] died or why he would be linked to her death two years after departing Sri Lanka, despite claiming that her family confronted and threatened his family in relation to her death.·The applicant claimed that [Mr I] and [Mr C] were powerful individuals working with the BBS against him. However, he was able to avoid being framed for drug offences because he was not home during an orchestrated raid. It seems improbable that the group would be both well-connected and motivated, but unsuccessful in their attempt the frame the applicant simply because he was not home. The group did not secure an arrest warrant and made no further attempt to frame the applicant, despite him remaining in Sri Lanka for an additional two years. Although the applicant gave evidence that the family moved to avoid further confrontation, he retained ownership of his property in [Suburb 1] and successfully rented the factory space to another business. Further, it would not be difficult to locate the applicant at his sister-in-law’s property in another part of Colombo for a well-connected and motivated person.·[Mr A] returned to Sri Lanka five years ago. While the applicant may no longer be in contact with his son, he gave evidence that [Mr A] still speaks with his mother. He gave no evidence to suggest that [Mr A] had been harmed since he returned to Sri Lanka. Even if [Mr A] were living a private life, he has successfully avoided harm from [Mr I] and Buddhist extremist groups operating in Sri Lanka for a significant period.·The applicant’s fear that he had been targeted by Buddhist groups here in Australia was not supported by reliable evidence. If the applicant had been the intended victim of a premeditated house fire or stabbing, it would be reasonable to expect that Victoria Police would investigate and provide further information to the applicant. I accept that the applicant was asked to sign a statement in respect to the incident in [Suburb 5]. However, the applicant was not interviewed by the police in relation to the house fire. He was not asked to attend court or provide any further evidence in respect to either incident. I accept that each crime was committed, however there is insufficient evidence to conclude that the applicant was specifically targeted for either crime.·Similarly, it is implausible that the applicant’s daughter-in-law would be murdered in Sri Lanka with no police involvement. It is unclear why her family would be restricted to complaining to just one police station and no evidence was put forward to support the applicant’s contention that Buddhist extremist groups exert control over the Sri Lankan police force such that a murder would not be investigated. I accept that [Ms G] died in 2022, however I do not accept that she was killed by assailants that mistook her as the new wife of [Mr A]. I do not accept that her death was linked to [Ms B], [Mr A] or the applicant.·According to the application form, the applicant departed and returned to Sri Lanka twelve times between 2013 and 2015. Each trip lasted less than one week, with the exception of one trip to [Country 3]. On his application form he suggested that he travelled for business. However, in the hearing he suggested that he took the trips because of his issues with [Mr I] and the BBS. I acknowledge that the applicant believed he would be unable to seek protection in [Country 1], [Country 2], [Country 3] or [Country 4] and I accept that it may have been more difficult than in Australia. Nevertheless, the short length of each trip, most being two to three days, supports the original assertion that the travel was for business purposes. I accept that a Buddhist monk contacted the applicant on behalf of neighbours sometime between 2003 and 2005 to request that his business cease producing toxic fumes. The applicant’s evidence did not indicate that he or his business were threatened by the monk or anyone else in respect to the incident. The applicant was not contacted about the fumes once he amended the business practice. On its face, the approach sounds reasonable in the circumstances rather than indicative of any negative attitudes towards Muslims or the applicant personally. I accept that the applicant was a supporter of Bharatha Lakshman Premachandra and Hirunika Premachandra and that he attended some campaign activities with both former MPs. The applicant was not employed by the UNP or the Premachandras. He gave no evidence to suggest that he acted as a public spokesperson or took an official role. The applicant did not personally run for parliament. He gave no evidence to suggest that he has been politically active in the diaspora or vocal on any sensitive issues since he departed Sri Lanka. The applicant gave evidence at the hearing that there is a high level of engagement with politics amongst the general population of Sri Lanka. In the circumstances, I do not consider that the applicant would have an increased profile or face an increased chance of harm as a result of his limited political activities. The applicant contended that Duminda Silva murdered Bharatha Lakshman Premachandra and was involved in the illegal drugs trade. It was widely reported in Sri Lanka and around the world that Mr Silva was convicted of the murder of Mr Premachandra. He was sentenced to death on 8 September 2016, however he was later granted a pardon by President Gotabaya Rajapaksa. A challenge of that decision is currently before the Sri Lankan Supreme Court.[7] There are also reports about Mr Silva’s alleged involvement in the drugs trade.[8] The articles indicate that it is widely speculated, if not accepted, that Mr Silva was involved in the murder of Mr Premachandra and the illegal drugs trade.[7] See, eg, ‘Decision to free Duminda Silva challenged in court,’ Colombo Gazette, 20 March 2023, accessed at Ethirajan, A, ‘Duminda Silva: Anger as Sri Lanka frees politician sentenced for murder,’ BBC News, 26 June 2021, accessed at D.B.S Jeyaraj, ‘The prosecution, conviction and ‘emancipation’ of Duminda Silva,’ Daily FT, published on 30 June 2021, accessed at See, eg, Chaudhury, D, ‘Abdulla Yameen’s man has link with drug cartel: Opposition,’ The Economic Times, published on 25 March 2015, accessed at >I accept the possibility that the applicant had a customer named [Mr C] and that customer owed him money. However, I do not accept that [Mr C] or Duminda Silwa attempted to frame the applicant for drug possession or related crimes or that they destroyed his business. As outlined above, I do not accept that [Mr I] or [Ms B]’s family targeted the applicant. It follows that I cannot accept that [Mr C] colluded with [Mr I] or [Ms B]’s family to frame the applicant. Furthermore, as outlined above, I found aspects of the claim to be farfetched.I accept that Muslims in Sri Lanka experience some official and societal discrimination. I further accept that Buddhist extremist groups exist and operate in the country. Nevertheless, I do not accept that being Muslim in of itself would present a real chance of serious harm to the applicant. I do not accept that the applicant has been specifically targeted by any individuals or groups in the past. I do not accept that the applicant has or would engage in behaviour that would raise his profile or increase his risk of being targeted in the reasonably foreseeable future. I consider the risk to the applicant as speculative only and based on his perception of the prevailing and general country conditions. I note that the applicant’s wife and children remain in Sri Lanka, his youngest son having secured employment as a [Occupation 1]. The applicant gave evidence that they return to the property in [Suburb 1] and stay there on occasion, such as recently over Ramadan. The applicant did not give evidence to indicate that his family had been targeted or harmed because of their ethnicity, religion or political opinions in recent years. I note that the applicant gave evidence that [Ms G] was killed by Buddhist extremists, however this claim was not accepted.I acknowledge that I read the decision of the Tribunal in respect to [Mr A]’s claims for protection. As outlined to the applicant, I assessed the current application on its merits and came to a decision anew under migration law. For clarity, I did not rely on any of the evidence contained in that decision, or the findings that the Tribunal reached.Considering the information about the treatment of Muslims generally in Sri Lanka and what I accept of the applicant’s claims, I do not accept that he would face a real chance of persecution in Sri Lanka for any of the reasons claimed or arising on the evidence. Complementary protectionFor the same reasons that I found there is no real chance of serious harm because of the applicant’s ethnicity, religion, or political opinion, I find that the real risk element of the test in s.36(2)(aa) has not been met.[9] I have therefore moved on to consider the potential risk caused by the applicant’s mental and physical health. [9] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.The real risk contemplated by s 36(2)(aa) is ‘…a real risk that the non-citizen will suffer significant harm’. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A) of the Act. Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment require an element of intent. There must be an actual, subjective, intention on the part of a person to bring about the suffering by their conduct.[10] Similarly, only conduct which is arbitrary in nature would meet the definition of arbitrary deprivation of life. There must be an intentional or deliberate act or omission that results in the applicant being deprived of his life.[11][10]SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556[11] EZC18 v MHA [2019] FCA 2143; SZDCD v MIBP [2019] FCA 326 at [48].As previously outlined, I accept that the applicant suffers from post-traumatic stress disorder, anxiety, depression, type-II diabetes and heart disease. I appreciate that the applicant would benefit from access to medical treatment available in Australia and acknowledge that he may not receive the same quality of care in Sri Lanka.Nevertheless, in the circumstances, I do not accept that there is an actual, subjective intention on the part of the Sri Lankan authorities or the medical profession to cause pain, suffering or humiliation. I do not accept that there would be a deliberate act that would result in the arbitrary deprivation of his life. The applicant previously received treatment for his heart condition in Sri Lanka and no evidence was put forward to indicate that he would be refused treatment for a medical condition on his return.Furthermore, section 36(2B)(c) sets out that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally.’ The availability and quality of health care is a situation faced by the population of Sri Lanka generally as opposed to the applicant personally. A risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country or shared by that population group in general.[12][12] SZTES v MIBP [2014] FCCA 1765 at [23]–[24], citing SZSRY v MIBP [2013] FCCA 1284. In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719.The Court’s reasoning in SZSPT v MIBP[13] suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace. This approach has also been taken in relation to the risk of harm from inadequate medical treatment.[14] In circumstances where health care is universal, I do not accept that the applicant would face a risk of differential treatment. [13] [2014] FCA 1245.[14] MZAAJ v MIBP [2015] FCA 478 at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.I find that there are no 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: 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).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Sheridan LeeMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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, I have 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 considerationANALYSIS AND FINDINGS On the available evidence, I accept that the applicant is a Muslim man from Colombo, Sri Lanka. I accept the diagnoses of post-traumatic stress disorder, anxiety, depression, type-II diabetes and heart disease. I have considered the Tribunal’s Guidelines on Vulnerable Persons and the UNHCR Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process. I accept the pretence of the UNHCR Guidance Note and agree that both depression and anxiety can impact negatively on memory. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. The applicant was provided with the opportunity to provide evidence both in writing and in person. A break was provided during the hearing at the applicant’s request. For the reasons below, I am not satisfied on the evidence before me that he faces a real chance of being persecuted in Sri Lanka for reasons of his religion, ethnicity or political opinion. This includes for reasons of his son dating a Sinhalese girl whose family were concerned that he would convert her to Islam. The Department of Foreign Affairs and Trade (DFAT) reports that ethnic Sinhalese constitute 75 per cent of Sri Lanka’s total population, with Tamils at 15 per cent, followed by Muslims at 9 per cent. Muslims in Sri Lanka are considered to be both an ethnicity and a religion.[1][1] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 December 2021. The Constitution of Sri Lanka provides for freedom of religion, including the freedom to change religion. The Constitution also provides for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’ and obligates the state to ‘protect and foster’ Buddhism while protecting the rights of religious minorities. Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. DFAT assesses that, while laws or official policies generally do not discriminate on the basis of religion, adherents of religions other than Buddhism face a low to moderate risk of official discrimination from government authorities, which can affect their ability to build places of worship, seek recourse for religiously-motivated attacks, and practise their faith freely.[2][2] Ibid.