1808564 (Refugee)
[2023] AATA 2509
•28 June 2023
1808564 (Refugee) [2023] AATA 2509 (28 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Michael McCrudden (MARN: 0429447)
CASE NUMBER: 1808564
COUNTRY OF REFERENCE: Sri Lanka
DEPUTY PRESIDENT: Antoinette Younes
DATE:28 June 2023
PLACE OF DECISION: Sydney
DECISION:The 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.
Statement made on 28 June 2023 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – supporter and campaign worker for political party – witness to killing of supporter of another party by bodyguard of politician – questioned and tortured by police and urged to leave by politician – multiple returns from third country – father’s death and wife’s fertility treatment – country information – level of state protection available – members of family unit – child’s developmental condition – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Koe v MIMA (1997) 74 FCR 508
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MZRAJ v MIMIA [2004] FCA 1261
Prathapan v MIMA (1998) 47 ALD 41
S1573 of 2003 v MIMIA [2005] FMCA 47Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 March 2018 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Sri Lanka, applied for the visas on 13 March 2017. Only the first applicant made specific protection claims. The other applicants relied on the claims made by the first applicant. The first applicant will therefore be referred to as the applicant.
The applicant and the second-named applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
Last submissions were received on 19 June 2023.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
In support of the application for review, the applicant provided a copy of the delegate’s decision record which among other things, refers to information provided by the applicant and the second-named applicant who is the applicant’s spouse, during the Protection visa interview with the delegate that took place on 12 February 2018. In essence, the second-named applicant indicated that:
·She feared returning to Sri Lanka as her husband was involved in politics which affected him ‘psychologically’ in addition to having received death threats. The death threats happened when she was not present. Her husband’s most recent trip in the middle of 2016 to Sri Lanka was by himself, with her and their daughter remaining in [Country]. She knew very little about what had taken place during his visit home. She is easily frightened and as a result her husband does not tell her much. She knows her husband’s problems relate to giving evidence in relation to a murder he witnessed ’a long time ago’.
·She could not say if the applicant had received death threats prior to 2016 as she was not ’involved with politics’ but recalled that her husband had been taken by police in 2004, but she could not give details about the incident as she did not reside with her husband at the time. Her husband went to [Country] because of the threats he received.
·When asked if she had ever been approached by police or any others in relation to the crime her husband had witnessed, she reiterated that they had not lived together before she joined him in [Country] in 2005 and so the police never contacted her, nor did anyone else.
·They did not live in her husband’s previous home when they went to Sri Lanka. They stayed with her sister or her husband’s relatives, and so nothing happened. They did not experience any difficulties entering into or departing Sri Lanka at the airport. She did not know what would happen to her husband if he returned to Sri Lanka.
During the same interview, the applicant stated that:
·He feared returning to Sri Lanka because of the ‘incident’ [in] November 2001. He described how he was assisting in the campaign of [Mr B] and on the day in question had been putting up posters with two others. [Mr E] was dropped off by [Mr B] himself as there were insufficient vehicles to take all the groups to their postering locations. He and [Mr E] met [Mr D], at [Village] junction with the intention of travelling in a line until they reached their destination. They were placing posters when four men on two motorbikes stopped in front of the three, blocking their way. The men started ‘screaming’ at the applicant and the others, demanding to know if they were responsible for pasting over their posters, which they denied but the men got off their motorcycles and began beating them. One of the four had a large knife, the other three had what appeared to be tree branches. Two of the men started beating the applicant and he was struck on the head, causing him to fall onto some steps. His assailants continued to attack him, resulting in him covering his face and head with his arms in order to try to protect himself. He then heard a ‘bang’ and suddenly one of his attackers clutched at his chest and fell forward to the applicant’s right. The applicant turned his head to the left and saw one of the two security guards who had been with [Mr B] holding a large rifle. [Mr B] was standing next to the gunman who looked angry and appeared not to care. There were other people around.
·The applicant informed the police about what took place, but did not disclose the shooter’s identity. [Mr B] instructed them not tell anything. Officers from the Criminal Investigation Department came the following day to question the applicant a second time, during which the applicant learned the identity of the dead attacker. Two weeks later, he presented to police who threatened him but he did not change his account and they released him two hours later. No charges were laid in relation to the murder.
·Parliament was dissolved in February 2004 with a new election to be held on 2 April 2004. He reluctantly felt obliged to help [Mr B] who had helped him obtain a good job. He provided limited assistance to the campaign and learned in March 2004 that the other supporter involved in the shooting incident, [Mr D] had changed allegiance to the UNP. [Mr D] stated that he provided evidence that [Mr B] had been the one to shoot the supporter that night.
·[In] March 2004, the police took the applicant in for questioning, telling him that they wanted him to be a witness that [Mr B] had been the shooter. He did not change his original statement. He was made to sign a document and then taken to hospital, with police warning him to tell medical staff that he had been injured in a random attack. The applicant sustained injuries during his interrogation including detailed ligature marks around his wrists. The applicant answered that doctors had not commented. He is uncertain as to whether charges were laid before the election, but the matter was not pursued because [Mr B] was not successful in being re-elected.
·He went to [Country] on multiple occasions and returned to Sri Lanka. On one occasion, he attended his sister’s wedding but around 9pm that evening, someone knocked on his hotel door which he though was housekeeping. On opening the door, four men rushed into the room, causing him to fall onto the bed. He was placed into a van and blindfolded, then taken to a farm. He then saw [Mr B] who told him not to return to Sri Lanka otherwise he would be killed. He was then taken back to his hotel room and left Sri Lanka over a week later [in] October 2016.
·The police or other authorities did not attempt to contact or find him after he signed the document stating he would act as a witness, as the government had changed. In relation to the matter regarding [Mr B] and the murder being reported in the media and the request to provide articles, he said that it had been mentioned only in political rallies and on the radio.
Subsequent to the interview, the applicant sent an email to the delegate stating that after having listened to the interview recording, he considered that there had been some interpreting issues at his interview and asked the delegate to disregard the interpreter’s statements and instead refer to his Statutory Declaration for an account of the incident in question.
The applicant provided to the Department documents in support, including:
·English translation of a newspaper article entitled ‘Sarna in Remand Prison’, English translation of newspaper article entitled ‘Strike on housing scheme at Horagolla’, English translation of newspaper article entitled ’55 million bribery allegation Complaint against Deputy Minister, Sarna, referred to Bribery Commission’, English translation of newspaper article entitled ‘Case in relation to shooting the sky and abducting a child..’, and English translation of newspaper article entitled ‘Stern warning from Court to Deputy Minister, Sarna’.
·Copy of medical certificate from [medical centre] dated 16 April 2017.
·English translation of the 5 December 2001 General Election letter.
·English translation of letter from [Ms F] dated 2 March 2017.
·Letter from the Baptist Church dated 3 April 2017.
·English translation of letter from [Rev G] dated 2 April 2017.
·Letter from [Hon H] dated 18 Apr 2017.
The delegate expressed concerns about the applicant’s credibility as well as implausibility of a number of his claims, and the fact that the applicant had returned to Sri Lanka on multiple occasions from [Country].
Tribunal review
In submissions to the Tribunal dated 24 August 2018 and a Statutory Declaration of 16 May 2023, the applicant provided an extensive analysis and critique of the delegate’s decision record.
The applicant provided to the Tribunal documents in support of the review, including:
·People's Alliance membership card.
·Letter confirming selection to assist [Mr B].
·Letter confirming that [the applicant] will put up posters [in] November 2001.
·Death certificate of [Mr C].
·Example of poster placed by [the applicant].
·Article in relation to incident [in] November 2001.
·Hospital records related to incident [in] November 2001.
·Photos of injuries sustained, taken after incident.
·Other relevant reporting of the incident.
·Evidence of attempts to obtain further evidence.
·Death of [Mr E].
·Evidence of employment in [Country].
·[Mr B]’s charge with offences of violence, evidence of [Mr B]'s relationship to significant figures in Sri Lanka, [Mr B]'s involvement in election violence, and [Mr B]'s ability to avoid prosecution.
·Evidence in relation to return trips to Sri Lanka, including election violence, the role of clientelism and patronage, and present human rights issues.
FINDINGS and REASONS
Country of nationality
On the basis of the available information. and for the purpose of this review, the Tribunal finds that the applicants are Sri Lankan nationals. The applicants made no claim to be nationals of any other country.
The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s 36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s 36(2)(aa).
Findings of fact
The Tribunal conducted a hearing during which the applicant gave extensive evidence about his claims, including the shooting incident. Overall, the Tribunal found the applicant’s evidence to be consistent with his earlier claims and he was able to provide specific details of the claimed events, as well as his activities in the PA. During the hearing, the applicant and [the second applicant] provided an account of their experiences in Sri Lanka that was both consistent with what the other said and with the evidence that was presented to the Department. The Tribunal is satisfied that [the second applicant] corroborated the key aspects of the applicant’s claims including her reasons for returning to Sri Lanka prior to 2016 and the applicant being abducted by [Mr B] and his associates.
In support of his claims, the applicant provided letters confirming his involvement with [Mr B] in 2001, including a letter about putting up posters. He has provided example of one of the posters, a newspaper report in relation to the 2001 shooting, and hospital records relating to his admission. The documents corroborate the applicant’s claims. He has also provided independent information which confirms that political violence was a significant problem during the 2001 election in Sri Lanka. This information support to the applicant’s claim relating to the 2001 shooting.
In consideration of the evidence as a whole, the Tribunal accepts that the applicant was involved in the PA to support [Mr B] in the 2001 election campaign and that the support included putting up posters and encouraging people to vote for [Mr B]. The Tribunal accepts that in 2001, the applicant and others were approached by people associated with the UNP, a rival political party and a fight broke out between those working for [Mr B] and the people associated with the UNP. The Tribunal accepts that [Mr B]’s bodyguard, [Mr I], then shot and killed, [Mr C], one of the people associated with the UNP.
The Tribunal accepts that subsequent to the shooting, the applicant was admitted to hospital and was told by [Mr B] not to disclose any information to the police. The Tribunal accepts that the applicant was questioned by the police in hospital and was told that he was suspected of being involved in a “homicide”. The Tribunal accepts that the applicant told the police that he saw someone get shot but he did not identify the culprit. The Tribunal is satisfied that the applicant did so as a way of mitigating the risk of him being charged, and also not implicating [Mr B]. The Tribunal accepts that the applicant in December 2001, was again questioned by the police in relation to the shooting and he reiterated his earlier version of events.
The Tribunal accepts that following the 2001 election, [Mr B] helped the applicant secure more lucrative employment and as such the applicant felt compelled to assist [Mr B] with the 2004 election campaign which included attending events after work, speaking to people and encouraging them to support [Mr B]. The Tribunal accepts that in March 2004, prior to the election, the applicant was detained by the police at the [Town 1] police station in relation to the 2001 shooting and when he refused to provide further information about who was responsible for the shooting, he was tortured and forced to sign a statement implicating [Mr B]. The Tribunal accepts that by making a statement implicating [Mr B] in the 2001 shooting, the applicant would be perceived as having betrayed [Mr B] and potentially he would be harmed as a result. The Tribunal accepts that [Mr B] subsequently threatened the applicant.
The Tribunal asked the applicant if he had a copy of his signed statement. He said he did not get a copy. He has, however, claimed that the records from the [Town 2] police station were not available due to the fact the police station was damaged in 2011, and this is supported by the country information provided in support. The applicant has also provided country information which indicates that in 2004 the Sri Lankan authorities were engaged in the abuse of witnesses, supporting his claim of torture by the police at this time.
In relation to his travels to [Country] and returns to Sri Lanka, the Tribunal accepts that the applicant returned to Sri Lanka [in] June 2004 because he could not secure work, a condition to him being able to live in [Country]. The applicant then returned to [Country] [in] February 2005. Thereafter the applicant and his family spent the majority of their time in [Country]. The applicant remained in [Country] until [February] 2006, when he returned briefly to Sri Lanka to resolve issues related to his [Country] visa. He then travelled to Sri Lanka to be with his father during the last stages of his life, to attend his father’s funeral (2012) and then to secure documentation for his family that was necessary to ensure they could continue residing in [Country]. He also returned to Sri Lanka so his wife could receive fertility treatment.
The Tribunal notes that the applicant has provided evidence in relation to his father’s death to demonstrate that his father was ill and the date he passed, along with passports issued in Sri Lanka. The Tribunal is satisfied that these documents corroborate the applicant’s claims as to the reasons he returned to Sri Lanka. The second-named applicant has also provided evidence confirming the family returned to Sri Lanka so she could receive fertility treatment. The Tribunal is persuaded by the submissions that the applicant had compelling reasons to return to Sri Lanka on each occasion. Although the Tribunal is concerned about the returns as they could potentially raise doubts about the applicant’s claims, the Tribunal is of the view that those concerns would need to be balanced with other aspects of the applicant’s claims and supporting material.
The Tribunal accepts as plausible that on his return to Sri Lanka, the applicant would be harmed by [Mr B], and his associates because the applicant is capable of implicating [Mr B] in the 2001 shooting, which would diminish [Mr B]’s power and influence, as well as the potential to cause considerable reputational and political damage to others close to him such as his niece.[1] The Tribunal is satisfied that the risk of harm is not far-fetched or remote.
[1] Which was incorrectly identified as a daughter previously.
During the hearing, the Tribunal raised the issue that any harm that the applicant fears at the hands of [Mr B] is arguably personal, that is by non-state agents. The applicant has, however, claimed that the authorities in Sri Lanka do not provide an effective or impartial system for the detection, persecution and punishment of acts constituting serious harm. He has contended that instead, the police in Sri Lanka operate at the behest of, or to promote favour with, those with political power, such as [Mr B]. The applicant’s submissions relied on country information as discussed below.
The most recent Department of Foreign Affairs and Trade (DFAT) report[2] notes the following:
CID officers (for example, Nishantha Silva and Shani Abeysekara) who had investigated crimes involving the military, police or the Rajapaksa family have been harassed or forced to flee the country. Their investigations have been severely criticised as politically motivated victimisation by the PCOI, which itself is criticised by observers as a politically motivated institution designed to protect the present government.
[2] DFAT Country Information Report Sri Lanka, 23 December 2021 (‘DFAT Report 2021’) [5.5].
The Report further notes that:
Extrajudicial killings continue in Sri Lanka, though they have decreased since the end of the civil war in 2009, and local sources say the principal victims of state violence at present are underworld figures rather than politically-targeted victims. In May 2021, an apparent underworld figure, Tharaka Perera Wijesekara, was shot dead by police while in custody, allegedly while trying to attack police. In the same month, another criminal figure was killed in a similar fashion. In the former case, the victim’s lawyer, reportedly upon learning the previous day that his client had been transferred to a different police unit and suspecting that he may be killed in custody, informed the Bar Association, the IGP, the Director CID and the Human Rights Commission of these concerns. Less than a day later his client was killed. DFAT is not aware of ongoing investigations in either case.
No legal mechanism exists to initiate independent investigations for state violence, including extrajudicial killings. Numerous historical cases of extrajudicial killings remain unsolved. In May 2016, police arrested former Senior Deputy Inspector-General of Police, Anura Senanayake, and Inspector Sumith Perera for allegedly concealing evidence relating to the 2010 murder of rugby player Wasim Thajudeen, in which at least one member of the Rajapaksa family is allegedly implicated. In 2017, Senanayake and Perera were granted bail. Senanayake died in 2021, never having been convicted of that offence or his alleged role in the cover-up of other historical offences, including the murder of Lasantha Wickematunge…. Perera testified before the Presidential Commission of Inquiry into political victimisation…
…
Systematic abductions using white vans, often leading to enforced disappearances, occurred during the war and in the period after. The term ‘white van abductions’ describes instances where individuals were abducted by unknown perpetrators in unmarked vehicles and were mostly never seen again. In its September 2021 report, Sri Lanka: Torture & Sexual Violence by Security Forces 2020-21, the ITJP reported on 15 cases of abduction, torture and rape of Tamils in the north and east by security forces since the change of government in 2019, purportedly for participation in commemorative events, or protests, or for receiving funds from abroad. In September 2021, the UN Report of the Working Group on Enforced or Involuntary Disappearances noted that more than 6,000 cases remain outstanding in Sri Lanka (though most date back to war time) and criticised the Government for a lack of accountability with regard to such disappearances. It did not, however, have any disappearances reported to it in the last two years. One human rights defender claimed disappearances have been replaced with ‘warrants, seizures and disinformation campaigns’; that is, mechanisms of the legal system have been used or arguably misused by the Government to suppress dissent rather than resort to extra-legal violence.
…
The Department of Prisons reported 168 deaths of prisoners in custody in 2020, down from 183 in 2019, but up substantially from 50 in 2017. The HRCSL, in its landmark study of prisons in 2020, found examples of ‘violence inflicted by prisoners and prison officers which ultimately caused death’. The US Department of State has assessed in the past that most deaths in custody are due to natural causes; however, 16 prisoners were reported to have been killed in 2020 and over 100 injured in multiple incidents in several prisons. According to the US Department of State 2020 Human Rights Report, on 29 November 2020, guards at the Mahara prison in Gampaha District opened fire on prisoners, who were attempting to escape during a riot sparked by panic over a COVID-19 outbreak. Eleven prisoners were killed and over 100 injured. Human rights activists noted Mahara prison was severely overcrowded, holding more than 2,000 inmates, despite its official capacity of 1,000, and said nearly half of the prisoners were COVID-19 positive. Police announced an investigation into the incident, but no public disciplinary action was taken nor arrests made in connection with the shooting. Consequently, there is an increasing sense of a lack of accountability with regard to deaths in custody in Sri Lanka.
…
Multiple local sources told DFAT police routinely mistreat suspects during criminal investigations, including using torture as a way of extracting confessions. Sources also told DFAT torture was common in prisons. Torture, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities, though more likely to affect the poor and marginalised, including members of criminal groups and LGBTI individuals, among others. In recent years, the HRCSL has received hundreds of complaints of torture annually, chiefly claiming its use by various departments of the Sri Lanka police. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to the practice.
Sri Lanka lacks independent and efficient mechanisms to address complaints of torture. While mechanisms exist, they are typically not effective in practice. For example, the HRCSL can inquire into complaints of torture and make recommendations, including for prosecution, to the Attorney-General’s Department. The HRCSL can also recommend disciplinary action against offenders by relevant state institutions and financial compensation for victims. According to the US Department of State reporting, the HRCSL documented 260 complaints of physical and mental torture from January to August 2020 in addition to 37 complaints from prisoners. In response to allegations of torture, the HRCSL carried out routine visits of detention centres, but DFAT cannot verify if such visits continue. The Supreme Court has jurisdiction to hear and determine complaints of fundamental rights violations, including torture, but judgements can take many years. Complainants have difficulty gaining access to the Supreme Court, as it sits only in Colombo and legal costs can be prohibitive.
…
Historically the judiciary has operated largely independently, particularly at the higher levels. Yet major shortcomings persist. The courts have no judicial review function and (increasingly) tend to defer to the executive on matters of national security. The judicial system is overburdened and lengthy legal procedures, large numbers of detainees, and a limited number of qualified police, prosecutors and judges combine to create long delays. In the north, the shortage of Tamil-speaking judges and court interpreters contributes to delays in many cases. According to a Sri Lankan study from 2017 by a committee of the Sri Lankan Parliament, the average length of time taken to conclude a criminal trial is 10.2 years, with the period between the date of commission of the offence and filing of the indictment at the High Court being 4.7 years. There continue to be some reports of corruption in the lower courts. The previous independence of the judiciary may be undermined by the effect of the 20th Amendment as senior judges are replaced by those appointed by the President.[3]
[3] DFAT Report 2021 above (n 2) [4.2--4.3], [4.6--4.7], [4.14--4.15], [5.8].
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.
DECISION
The 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 Younes
Deputy PresidentAttachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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