Evidence
Evidence Before The Court
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The applicants arrived in Australia on [in] February 2017 and lodged an application for a Protection visa on 13 March 2017. In support of the visa application, the applicant provided a Statutory Declaration in which he claimed:i) Due to his political involvement in Sri Lanka, he was persecuted by the current Sri Lankan authorities and suffered serious mental and physical harm. He has a brother and sister and he is the second child. His mother is an [Occupation 1] and father (deceased) was a businessman, delivering [Products]. His usual place of residence in Sri Lanka is the house where he lived since childhood. It was in the district of [District], Western province where he was educated and left school in [Year] after completing the Advanced Level at college. Education itself is not sufficient to ensure a good career in Sri Lanka. University studies were out of his reach due to the family’s limited finances. His mother’s work as an [Occupation 1] was not sufficient and she was having a hard time paying off his father's enormous debts; his father had alcohol and gambling issues. ii) He chose a career in [Work sector] and completed a Diploma in [Subject] in [Year]. Whilst studying, he worked as [an Occupation 2] in a company called [Company 1] (no longer exists). He undertook further studies and in March 2000, he completed a diploma in [a Related subject] and subsequently worked as [an Occupation 3] for a company called [Company 2]. He worked for other entities and studied an Advanced Diploma of [another Related subject].iii) His [Relative], [Mr A] was a candidate contesting the urban council elections in [Years], representing [Town 1], urban council. His [Relative] became a member of that council. His [Relative] was an active politician, supporting several different political parties including membership of the JVP, UNP, and the UNFGG. His parents were involved in political activities, supporting his [Relative]. iv) Although he was not knowledgeable of political affairs, he became involved in supporting his [Relative]’s political campaign in [Year]. He became well-known as a supporter of the UNP but that was the only time he ever supported the UNP, which ruled Sri Lanka for over 17 years. He started to gain knowledge about the country's political history, environment, and the situation. He began to dislike the UNP and he chose the PA. He let his family know of his support of the PA but the family objected. His parents accused him of being insane and stated that no one in the family had ever supported any political party other than the UNP. v) He became a member of the PA in [Year]. His first involvement in political work with the PA was the parliamentary election held in October 2000. This time was intense in the house where his parents could not believe his involvement in the PA. People in the area noticed the family's division and some praised him whilst others accused him of betrayal. Initially he was involved in minor activities such as helping in putting up party posters, distributing leaflets and helping setup rallies. He did not face any life-threatening events but rather heated arguments over campaign activities between supporters of the PA and the UNP. The PA was welcoming and appreciated his services. He felt that he had potential becoming a successful person within the PA. The PA government faced huge challenges to keep minority parties happy within the coalition. The SLMP left the party causing an early election in December 2001.vi) He was assigned by the organising committee of PA to work in election campaign representing [District] for the candidate, [Mr B], who was known to be a notorious political figure. Due to work, it was hard for him to fully commit to the election campaign during daytime, but he became involved in election campaign activities after 7pm during the weekdays and daytime Saturday. He did not participate in any activities on Sunday as that was the only day he did his own thing. His parents did not support his political activities and felt that he should continue with further studies. vii) He became well-known to [Mr B] who was elected as a member of parliament. He spent countless hours in the evenings spreading the message of him getting elected in [District]. There were many days when he was absent from work, because he did not have a time to sleep. There were no major incidents except some verbal confrontations with the opposition parties.viii) [In] November 2001, all changed; he witnessed a terrifying incident which changed his life. It was in the final stage of the campaign. [Mr B] met with them in the campaign organising facility at [District] and there were about 20 groups of four supporters who were assigned to different areas to put up campaign posters and distribute or drop off leaflets. About 11pm, just before they started working near [Location] in [Village], four people came on two motorbikes and stopped in front them. They told them that they had to put up posters on top of their posters. This was scary and he had never ever had any such close encounters with violent people. They attacked them and they were armed with knives and tree branches. He was beaten badly by two individuals and did not see what may have happened to other members of the group. The whole incident took about 10 minutes, and then he heard gun shots. One of the attackers was down on the ground in front of him. ix) He later realised that the gunman was one of the bodyguards of [Mr B], who came to their rescue. The applicant and another were taken to hospital. He was questioned about the incident by the police and was told that he was under suspicion of homicide of an UNP supporter, who was killed. He denied any wrongdoing. [Mr C] was also known as [Alias] and he had extensive criminal history involving petty crimes and thuggery. The incident was reported in the media and he was mentioned. After his discharge from hospital, he was told by the PA that he should be careful of revenge and as a consequence, his parents insisted on him not living at home for some time. He moved to a relative's place in [Suburb] but he lived in fear.x) The election ended in December 2001, losing to the UNF. The candidate he supported was selected to the parliament from [District]. About two weeks after the election, and while he was at work, his mother called and told him about the police coming to their home looking for him in relation to the death of [Mr C]. He went to the police with his father. He was questioned about the incident again. He reiterated what he had said whilst he was in hospital. When the police could not tie me for anything other than the blood, they questioned if [Mr B] himself, or his bodyguards, or two other members of the group were responsible for the shooting. He was threatened but after more than two hours of intensive questioning, he was free to go. Three months after the incident, he relocated to a relative's house. xi) He returned to work as it appeared that the investigation got nowhere and halted. Moreover, the election passed and the heat of the election time diminished from the minds of the people. He worked without any incidents and did further studies in [Subject area]. He got a better job in [Employer] as an [Occupation 4]. He was recommended to the job by [Mr B], as an appreciation for what he had done. He lived a low-profile life to prevent further threats. He got engaged [in] January 2004.xii) Since the end of 2003, there were multiple issues in Sri Lanka, triggering a new parliamentary election. The President dissolved parliament in February 2004, and an election was scheduled to 2 April 2004. This was the third parliamentary election Sri Lanka had encountered just over three years. [Mr B] asked for his support in the election campaign and he agreed despite the danger. His family was angry about his involvement in politics again. On this occasion, he only got involved in the campaign between 6pm and 9pm, and during daytime on Saturdays. When closer to the election, it was like a war. The cold case about the murder incident of the UNP member came to the spotlight again. This made him nervous and fearful.xiii) In mid-March 2004, he discovered that [Mr D], the only person who escaped the attack unharmed in the incident, defected to the UNF. [Mr D] was prepared to go against [Mr B], and give evidence pertaining to the killing. [Mr D] named the applicant as an eyewitness and he revealed the pledges that they made to [Mr B], in order to hide the truth from the authorities. This made him more nervous. xiv) On 22 March 2004, around 7am just a few minutes before leaving home for work, police entered their house and demanded for him to go with them for questioning in relation to the murder incident. At the police interrogation, they said they had all the evidence about the murder of the UNP supporter, [Mr C]. They said that [Mr B] was the man who shot him. He knew this was not true and that the culprit was the bodyguard. He maintained his position and kept his silence. He begged them not to hurt him but they tortured him to the point of becoming unconscious for quite some time. He knew that he had no way of getting out from this inhumane torture, so he agreed. After about three hours, the police produced a document stating that he had witnessed [Mr B] shoot and kill the UNP member. He signed as requested and asked for protection. He was assured that they would do so but did not say how. The police admitted him to [Hospital], and reported that he was a victim of assault from an unknown group of people. His parents were very concerned about what happened to him and he told them about what he went through at the hands of police. They were furious about the police but did not want to do anything to jeopardise his safety. [Mr B] came to hospital to see him and he was very suspicious about his injuries. He asked if he was taken by the police which the applicant denied. This whole situation affected him mentally, physically and financially. xv) Relocation to another area of the country would not resolve the threats and he could not live in hiding. His mother wanted him to leave Sri Lanka for good and he agreed. He had to act swiftly. Police may have already been preparing a case against [Mr B]. Just days before the election, the police announced that they would file a case against [Mr B] for the alleged killing of the UNP supporter in 2001. With that announcement, it was not safe to live in home. He went into hiding in one of his friend's relatives in [City]. His mother advised him that [Mr B] called his home on the election day of 2 April 2004, asking about his whereabouts. She told him that she had no knowledge of his whereabouts. [Mr B] was not elected.xvi) His [Relative] managed to get him a temporary visa for [Country] but as the UPFA was now in power, he thought he could remain in Sri Lanka where police would no longer be controlled by the UNF. He eventually decided to leave and went to [Country] [in] April 2004, just a few days after the election. His temporary visa to [Country] did not allow him to remain for a longer period. He worked until February 2005. [Country] is not a signatory to the Refugees Convention so he had to return to Sri Lanka despite the danger. He returned with utmost secrecy and maintained a low profile to avoid any detection from the authorities and [Mr B] about his presence in Sri Lanka.xvii) In mid-October 2005, he learnt that [Mr D], the witness who defected to UNP was murdered. The media alleged and speculated [Mr B] was responsible. His parents were very concerned about this development and urged him to maintain a low profile. He confined himself to the house in [City] and never put a foot out until he left Sri Lanka [in] February 2005. His wife went with him for a short period. It was a hard time working in [Country] as [an Occupation 5] and he hated the job. He later found a job as [an Occupation 6] in [Workplace] in [Country] but he had to return to Sri Lanka in February 2006 until the visa was granted. He stayed in [Town 2]. xviii) In 2007 and 2009, he returned to Sri Lanka as his father became very unwell and passed away from cancer. He went back to [Country] in November 2012 a day before his wife gave a birth to their daughter. As he did not experience any incidents whilst he was in Sri Lanka on a few occasions, and the fact that the country was then ruled by the UPFA government under president Mahinda Rajapakse, it gave him some confidence. He returned to Sri Lanka back on several occasions but maintained a very low profile by staying in [Town 2]. xix) The civil war ended but there was corruption. The government started to crack down and filed cases against many UPFA members. Things became serious to the opposition. His loved ones warned him to be careful and not to travel to Sri Lanka. His sister was getting married [in] October 2016 and arranged to book [a Hotel] for three days from [Day] until [Day]. Because of the security concerns, he did not take his wife or child with him. He did not associate with anyone due to the security concern. His family was surprised to see him at the wedding. They were also afraid. Whilst at the hotel, at around 9pm, there was a knock on his door. He opened the door and in split seconds, four people pushed into the room pushing him to the bed and pointing a gun at his head. They took him out of the hotel and put him in a white van and drove off. Then they blindfolded him. They said "don't worry, be calm. We are not going to do anything to you yet, if you comply, no need to fear." After about one hour’s drive from the place from where he was taken, they took him to another place, and took his blindfold off. He thought it was an abandoned old farmhouse. He then saw a familiar face coming towards him, namely [Mr B] who told him he was searching for him. He told him what had happened when he was questioned by the police and explained the reason for leaving Sri Lanka. He told him that he never said anything against him despite the interrogation and torture but that he agreed with police to get out of the situation and survive. [Mr B] replied, "I understand and I know everything about what you have went through under police duress". [Mr B] told him that it was good that he left Sri Lanka and that he should not have returned. He said, "Brother, I don't want to kill you. I know you are a good man and you worked hard for me. But I don't want you here." [Mr B] insisted on him leaving Sri Lanka and never returning. Then he ordered the people to take him back safely and unharmed. He took [Mr B]’s threat this time seriously and decided that he would never go back to Sri Lanka no matter what. However, [Country] would not allow him to stay permanently. He decided to come to Australia where his brother lives and who is willing to help him to seek a safe place. He arrived in Australia on a Visitor visa, then applied a for Protection visa.
Decision
Reasons for decision
In 2021, the UN Human Rights Council:[4]Expresses serious concern at the trends emerging over the past year, which represent a clear early warning sign of a deteriorating situation of human rights in Sri Lanka, including the accelerating militarization of civilian government functions; the erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights; ongoing impunity and political obstruction of accountability for crimes and human rights violations in ‘emblematic cases.[4] ‘Resolution adopted by the Human Rights Council on 23 March 2021: 46/1. Promoting reconciliation, accountability and human rights in Sri Lanka’ (online 26 May 2021), UN Human Rights Council <>A 2022 report Police Brutality and Corruption: the Rot Starts at the Top noted the willingness of the police to use the PTA as a means of targeting those opposed to the government.Brutality and corruption in Sri Lanka’s law enforcement are perennial issues. However with the government coming under increasing scrutiny, the cracks in the already fractured system are in the spotlight. Recent developments have exposed the drastically increasing violation of human rights and misogyny within the system. The manhandling of female police officers and the torture and electrocution of 10 years old by the police have caught the attention of the Human Rights Commission of Sri Lanka, which has summoned the Inspector General of the Police to investigate the repeated human rights violations committed by police officers.According to Member of Parliament, M.A. Sumanthiran, Sri Lanka is one of the worst countries for torture by the police. The institution that civilians look to for security is in fact the very institution that is propagating fear, deep distrust and murder. In the name of the Prevention of Terrorism Act (PTA) – implemented as a temporary instrument of counter terrorism law in 1979 – arbitrary arrests were made of peaceful protesters and young journalists who report dissenting views of the government and the civil service. Convener of the Inter-University Students Federation, Wasantha Mudalige, was arrested under the PTA for 90 days. A series of arrests that have been made in the last few months such as that of Tharindu Jayawardhana who was subject to arbitrary arrest and a six hour interrogation by the CID.[5][5] Groundviews, ‘Police Brutality and Corruption: the Rot Starts at the Top’ (online 20 November 2022) <>A 2022 Article by the Morning LK notes the increasing influence of politicians in criminal investigations. The article states:Political interference is hindering the work of some of Sri Lanka’s independent institutions, including the Police Department and the National Police Commission, charged Narahenpita Abayaramaya Chief Incumbent and Rata Rakina Jana Handa organisation Chairman Ven. Muruththettuwe Ananda Thera. Speaking at a press conference, Ananda Thera alleged that decisions at these institutions are now swayed by political influence. “The people currently in power criticised this during the past; however, when they came into power, something changed. We could see the Inspector General of Police become a puppet due to this political influence. Public Service Commission recommendations are also changed through exerting influence.[6][6] The Morning, ‘Police department under political influence charges monk’ (online June 2021) <>The most recent USSD report in relation to Sri Lanka also noted:Impunity remained a significant problem characterized by a lack of accountability for conflict-era violations and abuses, particularly regarding government officials, military, paramilitary, police, and other security-sector officials implicated and, in some cases, convicted of killing political opponents, journalists, and private citizens.[7][7] ‘2022 Country Reports on Human Rights Practices: Sri Lanka’ (online) US Department of State < The Tribunal is mindful that the state is not required to guarantee the safety of its citizens from harm caused by non-state agents.[8] In MIMA v Respondents S152/2003[9] Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[10] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[11] [8] MIMA v Respondents S152/2003 (2004) 222 CLR 1, [26] (‘MIMA v Respondents S152/2003’); See also MIMA v Thiyagarajah (1998) 80 FCR 543, 566–7; MIMA v Prathapan (1998) 86 FCR 95 [104–5]. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.[9] MIMA v Respondents S152/2003 above (n 8).[10] MIMA v Respondents S152/2003 above (n 8) [26].[11] MIMA v Respondents S152/2003 above (n 8) [117].What is required of the state for the purposes of Article 1A(2) has been described in several ways. The joint judgment in MIMA v Respondents S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[12] or a ‘reasonably effective police force and a reasonably impartial system of justice’,[13] indicating that the appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[14] [12] MIMA v Respondents S152/2003 above (n 8) [26].[13] MIMA v Respondents S152/2003 above (n 8) [28].[14] MIMA v Respondents S152/2003 above (n 8) [27], citing Osman v United Kingdom (1998) 29 EHRR 245. The High Court in MIMA v Respondents S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[15] [15] See MZRAJ v MIMIA [2004] FCA 1261 [26]–[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 [30]–[34]. Some guidance can be found in Australian case law predating MIMA v Respondents S152/2003. In Prathapan[16] at first instance, Madgwick J referred to ‘a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy’ as ordinarily amounting to effective and ‘available’ protection.[17] His Honour stated:No doubt the protection in question must be effective and “available”, and an actual inquiry into this must be made: Jong Kim Koe.[18] However, in 1951 and since, having regard to the realities of nations and the practicalities of applying the Convention, the framers and keepers of the Convention would hardly have envisaged that a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy, would not ordinarily amount to effective and “available” protection.[19][16] Prathapan v MIMA (1998) 47 ALD 41 (‘Prathapan v MIMA’).[17] Prathapan v MIMA above (n 16).[18] Koe v MIMA (1997) 74 FCR 508.[19]Prathapan v MIMA above (n 16) 48. This decision was overturned on appeal (MIMA v Prathapan (1998) 86 FCR 95) but this point was not disturbed.On balance and giving regard to the above judicial guidance, the Tribunal is satisfied that independent country information supports the applicant’s contentions that if he were to make a complaint against [Mr B] to the Sri Lankan authorities, there is a real chance that the police would withhold protection because of [Mr B]’s connections to power, and by doing so, they will withhold protection because the applicant would be perceived as having anti Sri Lankan authorities’ views. The Tribunal is satisfied that country information supports the submissions that the authorities in Sri Lanka do not provide an effective system for the detection, persecution and punishment of acts constituting serious harm, and that the police in Sri Lanka are influenced by political power. The Tribunal is satisfied that the applicant would not receive adequate state protection for the harm he fears. The Tribunal, therefore, finds that the applicant’s fear is well-founded. The applicant claims and the Tribunal accepts that there is nowhere he could live in Sri Lanka to avoid persecution. The applicant claims that [Mr B] is a person of such influence in Sri Lanka that he has the capacity to harm the applicant wherever he might be in Sri Lanka. Likewise, he claims that the opponents of [Mr B] would be sufficiently motivated to target him throughout Sri Lanka. The applicant further argues that it would also be unreasonable for the applicant to relocate within Sri Lanka, as he has a [Age]-year-old child who is autistic[20] and who will require ongoing care and support for the rest of her life. In consideration of the evidence as a whole, the Tribunal is satisfied that relocation is unreasonable.[20] Evidence in support provided.For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the two other applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a Protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISIONThe Tribunal remits the matter for reconsideration with the following directions:(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.Antoinette YounesDeputy PresidentAttachment - 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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The applicants arrived in Australia on [in] February 2017 and lodged an application for a Protection visa on 13 March 2017. In support of the visa application, the applicant provided a Statutory Declaration in which he claimed:i) Due to his political involvement in Sri Lanka, he was persecuted by the current Sri Lankan authorities and suffered serious mental and physical harm. He has a brother and sister and he is the second child. His mother is an [Occupation 1] and father (deceased) was a businessman, delivering [Products]. His usual place of residence in Sri Lanka is the house where he lived since childhood. It was in the district of [District], Western province where he was educated and left school in [Year] after completing the Advanced Level at college. Education itself is not sufficient to ensure a good career in Sri Lanka. University studies were out of his reach due to the family’s limited finances. His mother’s work as an [Occupation 1] was not sufficient and she was having a hard time paying off his father's enormous debts; his father had alcohol and gambling issues. ii) He chose a career in [Work sector] and completed a Diploma in [Subject] in [Year]. Whilst studying, he worked as [an Occupation 2] in a company called [Company 1] (no longer exists). He undertook further studies and in March 2000, he completed a diploma in [a Related subject] and subsequently worked as [an Occupation 3] for a company called [Company 2]. He worked for other entities and studied an Advanced Diploma of [another Related subject].iii) His [Relative], [Mr A] was a candidate contesting the urban council elections in [Years], representing [Town 1], urban council. His [Relative] became a member of that council. His [Relative] was an active politician, supporting several different political parties including membership of the JVP, UNP, and the UNFGG. His parents were involved in political activities, supporting his [Relative]. iv) Although he was not knowledgeable of political affairs, he became involved in supporting his [Relative]’s political campaign in [Year]. He became well-known as a supporter of the UNP but that was the only time he ever supported the UNP, which ruled Sri Lanka for over 17 years. He started to gain knowledge about the country's political history, environment, and the situation. He began to dislike the UNP and he chose the PA. He let his family know of his support of the PA but the family objected. His parents accused him of being insane and stated that no one in the family had ever supported any political party other than the UNP. v) He became a member of the PA in [Year]. His first involvement in political work with the PA was the parliamentary election held in October 2000. This time was intense in the house where his parents could not believe his involvement in the PA. People in the area noticed the family's division and some praised him whilst others accused him of betrayal. Initially he was involved in minor activities such as helping in putting up party posters, distributing leaflets and helping setup rallies. He did not face any life-threatening events but rather heated arguments over campaign activities between supporters of the PA and the UNP. The PA was welcoming and appreciated his services. He felt that he had potential becoming a successful person within the PA. The PA government faced huge challenges to keep minority parties happy within the coalition. The SLMP left the party causing an early election in December 2001.vi) He was assigned by the organising committee of PA to work in election campaign representing [District] for the candidate, [Mr B], who was known to be a notorious political figure. Due to work, it was hard for him to fully commit to the election campaign during daytime, but he became involved in election campaign activities after 7pm during the weekdays and daytime Saturday. He did not participate in any activities on Sunday as that was the only day he did his own thing. His parents did not support his political activities and felt that he should continue with further studies. vii) He became well-known to [Mr B] who was elected as a member of parliament. He spent countless hours in the evenings spreading the message of him getting elected in [District]. There were many days when he was absent from work, because he did not have a time to sleep. There were no major incidents except some verbal confrontations with the opposition parties.viii) [In] November 2001, all changed; he witnessed a terrifying incident which changed his life. It was in the final stage of the campaign. [Mr B] met with them in the campaign organising facility at [District] and there were about 20 groups of four supporters who were assigned to different areas to put up campaign posters and distribute or drop off leaflets. About 11pm, just before they started working near [Location] in [Village], four people came on two motorbikes and stopped in front them. They told them that they had to put up posters on top of their posters. This was scary and he had never ever had any such close encounters with violent people. They attacked them and they were armed with knives and tree branches. He was beaten badly by two individuals and did not see what may have happened to other members of the group. The whole incident took about 10 minutes, and then he heard gun shots. One of the attackers was down on the ground in front of him. ix) He later realised that the gunman was one of the bodyguards of [Mr B], who came to their rescue. The applicant and another were taken to hospital. He was questioned about the incident by the police and was told that he was under suspicion of homicide of an UNP supporter, who was killed. He denied any wrongdoing. [Mr C] was also known as [Alias] and he had extensive criminal history involving petty crimes and thuggery. The incident was reported in the media and he was mentioned. After his discharge from hospital, he was told by the PA that he should be careful of revenge and as a consequence, his parents insisted on him not living at home for some time. He moved to a relative's place in [Suburb] but he lived in fear.x) The election ended in December 2001, losing to the UNF. The candidate he supported was selected to the parliament from [District]. About two weeks after the election, and while he was at work, his mother called and told him about the police coming to their home looking for him in relation to the death of [Mr C]. He went to the police with his father. He was questioned about the incident again. He reiterated what he had said whilst he was in hospital. When the police could not tie me for anything other than the blood, they questioned if [Mr B] himself, or his bodyguards, or two other members of the group were responsible for the shooting. He was threatened but after more than two hours of intensive questioning, he was free to go. Three months after the incident, he relocated to a relative's house. xi) He returned to work as it appeared that the investigation got nowhere and halted. Moreover, the election passed and the heat of the election time diminished from the minds of the people. He worked without any incidents and did further studies in [Subject area]. He got a better job in [Employer] as an [Occupation 4]. He was recommended to the job by [Mr B], as an appreciation for what he had done. He lived a low-profile life to prevent further threats. He got engaged [in] January 2004.xii) Since the end of 2003, there were multiple issues in Sri Lanka, triggering a new parliamentary election. The President dissolved parliament in February 2004, and an election was scheduled to 2 April 2004. This was the third parliamentary election Sri Lanka had encountered just over three years. [Mr B] asked for his support in the election campaign and he agreed despite the danger. His family was angry about his involvement in politics again. On this occasion, he only got involved in the campaign between 6pm and 9pm, and during daytime on Saturdays. When closer to the election, it was like a war. The cold case about the murder incident of the UNP member came to the spotlight again. This made him nervous and fearful.xiii) In mid-March 2004, he discovered that [Mr D], the only person who escaped the attack unharmed in the incident, defected to the UNF. [Mr D] was prepared to go against [Mr B], and give evidence pertaining to the killing. [Mr D] named the applicant as an eyewitness and he revealed the pledges that they made to [Mr B], in order to hide the truth from the authorities. This made him more nervous. xiv) On 22 March 2004, around 7am just a few minutes before leaving home for work, police entered their house and demanded for him to go with them for questioning in relation to the murder incident. At the police interrogation, they said they had all the evidence about the murder of the UNP supporter, [Mr C]. They said that [Mr B] was the man who shot him. He knew this was not true and that the culprit was the bodyguard. He maintained his position and kept his silence. He begged them not to hurt him but they tortured him to the point of becoming unconscious for quite some time. He knew that he had no way of getting out from this inhumane torture, so he agreed. After about three hours, the police produced a document stating that he had witnessed [Mr B] shoot and kill the UNP member. He signed as requested and asked for protection. He was assured that they would do so but did not say how. The police admitted him to [Hospital], and reported that he was a victim of assault from an unknown group of people. His parents were very concerned about what happened to him and he told them about what he went through at the hands of police. They were furious about the police but did not want to do anything to jeopardise his safety. [Mr B] came to hospital to see him and he was very suspicious about his injuries. He asked if he was taken by the police which the applicant denied. This whole situation affected him mentally, physically and financially. xv) Relocation to another area of the country would not resolve the threats and he could not live in hiding. His mother wanted him to leave Sri Lanka for good and he agreed. He had to act swiftly. Police may have already been preparing a case against [Mr B]. Just days before the election, the police announced that they would file a case against [Mr B] for the alleged killing of the UNP supporter in 2001. With that announcement, it was not safe to live in home. He went into hiding in one of his friend's relatives in [City]. His mother advised him that [Mr B] called his home on the election day of 2 April 2004, asking about his whereabouts. She told him that she had no knowledge of his whereabouts. [Mr B] was not elected.xvi) His [Relative] managed to get him a temporary visa for [Country] but as the UPFA was now in power, he thought he could remain in Sri Lanka where police would no longer be controlled by the UNF. He eventually decided to leave and went to [Country] [in] April 2004, just a few days after the election. His temporary visa to [Country] did not allow him to remain for a longer period. He worked until February 2005. [Country] is not a signatory to the Refugees Convention so he had to return to Sri Lanka despite the danger. He returned with utmost secrecy and maintained a low profile to avoid any detection from the authorities and [Mr B] about his presence in Sri Lanka.xvii) In mid-October 2005, he learnt that [Mr D], the witness who defected to UNP was murdered. The media alleged and speculated [Mr B] was responsible. His parents were very concerned about this development and urged him to maintain a low profile. He confined himself to the house in [City] and never put a foot out until he left Sri Lanka [in] February 2005. His wife went with him for a short period. It was a hard time working in [Country] as [an Occupation 5] and he hated the job. He later found a job as [an Occupation 6] in [Workplace] in [Country] but he had to return to Sri Lanka in February 2006 until the visa was granted. He stayed in [Town 2]. xviii) In 2007 and 2009, he returned to Sri Lanka as his father became very unwell and passed away from cancer. He went back to [Country] in November 2012 a day before his wife gave a birth to their daughter. As he did not experience any incidents whilst he was in Sri Lanka on a few occasions, and the fact that the country was then ruled by the UPFA government under president Mahinda Rajapakse, it gave him some confidence. He returned to Sri Lanka back on several occasions but maintained a very low profile by staying in [Town 2]. xix) The civil war ended but there was corruption. The government started to crack down and filed cases against many UPFA members. Things became serious to the opposition. His loved ones warned him to be careful and not to travel to Sri Lanka. His sister was getting married [in] October 2016 and arranged to book [a Hotel] for three days from [Day] until [Day]. Because of the security concerns, he did not take his wife or child with him. He did not associate with anyone due to the security concern. His family was surprised to see him at the wedding. They were also afraid. Whilst at the hotel, at around 9pm, there was a knock on his door. He opened the door and in split seconds, four people pushed into the room pushing him to the bed and pointing a gun at his head. They took him out of the hotel and put him in a white van and drove off. Then they blindfolded him. They said "don't worry, be calm. We are not going to do anything to you yet, if you comply, no need to fear." After about one hour’s drive from the place from where he was taken, they took him to another place, and took his blindfold off. He thought it was an abandoned old farmhouse. He then saw a familiar face coming towards him, namely [Mr B] who told him he was searching for him. He told him what had happened when he was questioned by the police and explained the reason for leaving Sri Lanka. He told him that he never said anything against him despite the interrogation and torture but that he agreed with police to get out of the situation and survive. [Mr B] replied, "I understand and I know everything about what you have went through under police duress". [Mr B] told him that it was good that he left Sri Lanka and that he should not have returned. He said, "Brother, I don't want to kill you. I know you are a good man and you worked hard for me. But I don't want you here." [Mr B] insisted on him leaving Sri Lanka and never returning. Then he ordered the people to take him back safely and unharmed. He took [Mr B]’s threat this time seriously and decided that he would never go back to Sri Lanka no matter what. However, [Country] would not allow him to stay permanently. He decided to come to Australia where his brother lives and who is willing to help him to seek a safe place. He arrived in Australia on a Visitor visa, then applied a for Protection visa.