1809027 (Refugee)

1809027 (Refugee) [2022] AATA 3644 (26 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809027
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Tamara Hamilton-Noy
DATE:26 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2022 at 8:26am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – supporter of political party – threats and demands for money, including while applicant in Australia and father in third country, and during return visit – credibility – inconsistent and implausible claims and evidence – when and how applicant joined party – delays in departing and applying for protection – father’s protection visa in third country – limited political activity in Sri Lanka and participation in one protest in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J(1)(a), (b), 36(2)(a), (aa), (2B)(c), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia [in] March 2013 on a higher education sector visa. The applicant departed Australia [in] May 2013 and returned to Australia [in] May 2013. The applicant departed Australia [in] May 2014 and returned to Australia [in] May 2014.
The applicant applied for protection on 11 March 2015.
The applicant departed Australia [in] December 2015 and returned to Australia [in] January 2016. The applicant departed Australia [in] July 2016 and returned to Australia [in] August 2016. The applicant departed Australia [in] April 2017 and returned to Australia [in] May 2017.
On 15 March 2018, a delegate of the Department refused to grant the applicant a protection visa.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated he was born in Kotte, Western province, Sri Lanka, that he is a Sri Lankan citizen, of Sinhalese ethnicity and of Roman Catholic faith. The applicant stated that both of his parents are Sri Lankan citizens. He stated that he was married in March 2009 in Victoria. He stated that he had completed schooling and a degree in [Subject] in Sri Lanka and had then undertaken degrees in [Subject] and a diploma in [Subjects] in [Country 1].
In the written protection application, the applicant stated that he had left Sri Lanka because he had travelled to [Country 1] in 2009 to undertake higher studies and had competed the [Professional body] [Subject]. He had returned to Sri Lanka in 2010 and worked as an assistant [Occupation 1]. In 2012, he considered undertaking higher studies in a Bachelor of [Subject] degree in Australia. The applicant stated that, if he returns to Sri Lanka, he and his father are supporters of the United National Party (UNP) and, because of their political opinion, they constantly received death threats and, because of this, his father regularly travelled out of the country. They were operating a family-owned business and after the applicant returned to Sri Lanka in 2010, he handled the family business. He came to Australia in 2013 for studies and travelled back to Sri Lanka in 2013 for his brother’s wedding and two days later returned to Australia to continue his studies. A few months later, his mother told him that a group of unknown men had come to their house to inquire about the applicant and his father. Months before the presidential election in 2014, the unknown men came again to their house and inquired about the applicant. They threatened his mother and told her to inform the applicant to support the United People’s Freedom Alliance party (UPFA) for the election in 2014 and demanded money for their election campaign. They threatened to kidnap, torture and punish the applicant if he did not pay or support them. The unknown men came to the applicant’s house frequently before and during the presidential election in 2014 and had started to do this again because the president was going to dissolve the parliamentary election. They were still demanding money and support for the UPFA. The applicant stated that he fears returning to Sri Lanka because these unknown men will kidnap him, torture him and punish him for his political opinion.
The applicant stated in the written protection application that he believes he will be harmed or mistreated if he returns to Sri Lanka because he is a supporter of the UNP. During the presidential election campaign in 2014 a group of men came to their house and threatened his mother. His mother tried to file a police complaint but the police refused to file and investigate because the UPFA party had the majority in parliament. The applicant stated that he does not believe the authorities in Sri Lanka would protect him because every time they had received death threats, they filed a police complaint but the police hadn’t investigated. He stated that he could not relocate within Sri Lanka because he does not have any friends or relatives living out of his hometown and doesn’t have any place to stay other than their home.
The applicant provided a letter to the Department, dated 9 March 2015, in support of his claims, which set out the same information as above. In addition, the applicant noted in the letter that his father is a member and popular supporter of the UNP and that he followed in his father’s footsteps and started to support the UNP. After the change of government in 1994, his father received death threats and unknown men came to their house regularly. His father tried to file a police report, but the police refused to investigate because they were supporters of the opposition party. His father was stressed and depressed and so travelled to [Country 2] in 1998. Even while his father was out of the country, they received anonymous calls over the phone in a threatening tone. His father set up a company and started to export [product] to the [Country 2] market from Sri Lanka. He returned to Sri Lanka after eight years, but the situation was the same, so he travelled out of the country regularly.
In addition to identification documents, the applicant provided to the Department copies of training and educational certificates, media reports, marriage certificate, letters from his former employers, police reports and documents relating to the applicant’s business and financial affairs. Relevant parts of these documents are referred to further below.
The applicant was interviewed by a delegate of the Department on 8 February 2018. The Tribunal had access to a recording of the interview, the relevant parts of which are discussed further below.
A delegate of the Department found that the applicant had had limited involvement with the UNP, that his political activities and involvement were minor in nature and that there was no evidence he had continued his political activities in Australia or would continue political activities in the future. The delegate did not accept the applicant’s father had a prominent political profile and placed no weight on a document provided by the applicant from a Parliamentarian or on police reports, given the level of document fraud in Sri Lanka. The delegate found that the applicant remained in Sri Lanka for some period of time after the alleged threats against his father in 2001 and was not convinced the applicant’s father was in hiding, that the applicant’s father fled Sri Lanka to avoid harm or that the applicant is at risk of harm because of his father’s political activities. The delegate did not accept the applicant was confronted by rival political supporters or that he was threatened by unknown assailants on motorcycles. The delegate was not satisfied the applicant is a wealthy businessman who would face threats or kidnapping or who would be unable to access state protection. The delegate did not accept the applicant was involved in prominent political campaigns or had a political profile that would attract adverse attention from rival political groups. The delegate was not satisfied that the applicant is at risk for one of the reasons in s.5J(1)(a) or that he faces a real risk of significant harm.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 11 May 2019, the applicant provided a statement to the Tribunal, dated 10 May 2019, with 23 attachments (media reports and translated police reports).
On 27 May 2022, the applicant provided written submissions to the Tribunal, dated 26 May 2022. On 28 May 2022, the applicant provided a range of reports to the Tribunal about the human rights situation in Sri Lanka.
The Tribunal hearing was conducted on 7 June 2022. The applicant was not represented at the hearing and did not request an interpreter for the hearing. The applicant responded appropriately to the Tribunal’s questions throughout the hearing. He has undertaken certificates conducted in English since arriving in Australia. The Tribunal was satisfied from the answers given by the applicant to the Tribunal’s questions at hearing that the applicant is proficient in English and that he had adequate opportunity to give evidence and present arguments throughout the hearing.
Following the hearing, the Tribunal provided the applicant time to make written submissions about his right to enter and reside in [Country 3] and any claimed harm in [Country 3], and to clarify whether he was seeking to call his brother to give evidence to the Tribunal. The Tribunal also wrote to the applicant after the hearing under s.424A and invited his comment.
On 20 June 2022, the Tribunal received written submissions from the applicant about his right to enter and reside in [Country 3] and on 8 July 2022, the Tribunal received written submissions and other information from the applicant. Relevant parts of the statements, information and media reports provided by the applicant to the Tribunal are discussed further below.
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.
Assessment, reasons and findings
Country of nationality
The applicant travelled to Australia on a Sri Lankan passport and has at all times maintained that he is a citizen of Sri Lanka. The Tribunal finds that the applicant is a Sri Lankan citizen and has assessed his claims against Sri Lanka as his country of nationality.
The applicant’s background
The applicant has provided, in his claims, consistent evidence about his background, education, family composition and employment history. The Tribunal accepts the applicant was born in Kotte, Western Province, Sri Lanka and that he is a Sinhalese Roman Catholic. The Tribunal accepts that the applicant’s mother and grandmother are residing in Sri Lanka in the family home in Kotte and that his brother is residing in Australia. The applicant told the Tribunal that his brother left Sri Lanka in 2006 for Australia and that his brother has contact with his mother several times a week. The applicant stated that his brother has completed a bachelor and a master’s degree in Australia and now has Australian citizenship.
The Tribunal is prepared to accept that the applicant’s father is no longer living in Sri Lanka and has resided overseas for a number of years. The Tribunal is prepared to accept the applicant’s evidence that his father owned a [trading] company and that he set up an arm of this business in [Country 2] in 1990, where the company exported [product] to from Sri Lanka. The applicant gave evidence at hearing that his father returned in 2006 and left Sri Lanka again in 2006, around the same time his brother came to Australia.
The applicant gave evidence that he had handled the family business’ Sri Lanka arm, and had checked their produce and assisted with [job tasks], from 2001 to 2006. The Tribunal accepts the applicant completed his General Certificate of Education (Advanced Level) in Colombo and that he completed a course in [Subject] in Sri Lanka, and that he worked as an assistant [Occupation 1] for his father’s company in Sri Lanka. The applicant gave evidence at hearing that he worked for his father’s company until 2006 and then from 2006 to 2009 he worked as [an Occupation 2], and later as a supervisor, at [Employer] before leaving for [Country 1] in 2009; he provided letters and documents to the Tribunal in support of his evidence and the Tribunal accepted this evidence as correct. The applicant told the Tribunal that he had left Sri Lanka in 2009 at [Age] years of age to travel to [Country 1]. The Tribunal accepts that the applicant undertook further studies in [subject] in [Country 1]. The Tribunal accepts the evidence given by the applicant at hearing that he is married to a national of [Country 3], that his wife is working in [Country 1] as [an Occupation 3] and that they have a young child who is living with his wife’s family in [Country 3].
The applicant claims to have come to Australia on a student visa with the intention of completing a Bachelor of [Subject] and claims that, since arriving in Australia, he has been working as [Occupations 4 and 5]. The Tribunal accepts this evidence as correct.
The applicant stated in his written protection application that he departed Sri Lanka legally on his own passport through Colombo Airport. He gave evidence to the Tribunal at hearing that he had left Sri Lanka legally and had had no problems leaving through Colombo airport. The Tribunal accepted this is correct.
The applicant’s departures from Australia have been noted above. The applicant gave evidence at hearing that he returned to Sri Lanka in 2013 for his brother’s wedding. He gave evidence that he went to [Country 1] in May 2014 to see his wife, to [Country 3] in December 2015 when his son was born, to [Country 1] in July 2016 to see his wife and April 2017 to see his wife in [Country 1]. The applicant gave evidence that he had not seen his wife since 2017 due to the Department rejecting a bridging visa and then due to the COVID-19 pandemic. The Tribunal accepts this evidence as correct.
Political opinion
By way of background, the Tribunal notes that Sri Lanka gained independence from the UK in 1948 and that, historically, relations between the majority Sinhalese population and minority Tamil population have been tense. After independence, a succession of Sinhalese-led governments introduced measures to promote the Sinhalese community which created a sense of marginalisation in the Tamil population. In response, a number of militant groups emerged to advance the cause of Tamil statement, the most prominent being the Liberation Tigers of Tamil Eelam (LTTE) who launched an armed insurgency against the government in 1983. The civil war involved serious human rights violations under President Mahinda Rajapaksa, with an estimated 100,000 killed and 900,000 displaced, and lasted until 2009 following the military defeat of the LTTE.[1]
[1] DFAT Country Information Report Sri Lanka, 23 December 2021, at 2.1 – 2.2.
In 2015, Maithripala Sirisena defected from the Rajapaksa government to a rival political group and was elected President, promising a new era of ‘clean’ government, although faced a constitutional crisis when he appointed Mahinda Rajapaksa as Prime Minister. In 2019, Gotabaya Rajapaksa was sworn in as President, and chose his elder brother Mahinda Rajapaksa as Prime Minster. This led to commentary that these developments indicated a return to former patterns of discrimination and widespread violations of human rights abuses seen in previous decades.[2] In August 2020, the Sri Lanka People’s Freedom Alliance (SLPFA) coalition under Gotabaya Rajapaksa’s party, the Sri Lanka People’s Front (SLPP) won a two thirds majority in Parliament led by Prime Minister Mahinda Rajapaksa. In mid-2021, Basil Rajapaska was sworn in as Finance Minister, further consolidating the family’s control over government.[3] More recently, following nationwide protests over an unfolding and significant economic crisis in the country, Gotabaya Rajapaksa fled Sri Lanka in July 2022 and the parliament voted in Ranil Wickremasinghe of the UNP as the country’s eighth executive President until November 2024, despite the UNP having failed to win a single seat in the August 2020 elections.[4]
[2] DFAT Country Information Report Sri Lanka, 23 December 2021, at 2.3 – 2.5.
[3] DFAT Country Information Report Sri Lanka, 23 December 2021, at 2.30 – 2.32.
[4] East Asia Forum, ‘Colombo’s controversial new president’, N. DeVotta, 24 July 2022 at

The applicant claims to fear harm upon return to Sri Lanka because of his membership of the UNP. The applicant gave evidence at the Tribunal hearing that his father was a party organiser for the UNP, was the ‘backbone’ of the UNP and collected money for the party. The applicant claimed that when he joined the UNP in 1996, his father had introduced him to donors. He gave evidence of having been involved in meetings, community awareness programs and drives from 2001 to 2013.
The Tribunal spoke at length to the applicant at the hearing about the UNP and its role within Sri Lankan politics and was persuaded by this evidence that the applicant is familiar with the history of the party and was able to name individuals who have played a role within the party. However, because of inconsistencies in the applicant’s evidence, the implausibility of aspects of his claims and for other reasons as set out below, the Tribunal does not accept the applicant has been threatened or harmed for reasons of his political opinion or his father’s political activities in Sri Lanka, or that he fears harm upon return to Sri Lanka for these reasons.
Firstly, the applicant has given inconsistent evidence about when and how he joined the UNP. At the Department interview on 8 February 2018, the applicant told the delegate that his father had not allowed him to get a membership for the UNP because his father was scared ‘they’ would get the applicant’s details. The applicant told the delegate that after the UNP introduced e-memberships, he had applied for UNP membership in 2016 because he felt that his details could not be hacked online. He told the delegate that earlier the UNP had had membership cards but that his parents had discouraged him from getting one because his details could be taken from a folder.
In contrast to this evidence, at the Tribunal hearing, the applicant gave evidence to the Tribunal that he had joined the UNP in 1996. He told the Tribunal that the process for joining was that he had filled in a form with his details, that there had been no computer-based system and that he had given his identification number and date of birth. He told the Tribunal that he had completed this form in 1996.
After the hearing, the Tribunal wrote to the applicant under s.424A about the above inconsistencies and stating that the information was relevant because the inconsistencies in the applicant’s evidence about when and how he claims to have joined the UNP may lead the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to not accept that the applicant’s father was politically active in Sri Lanka or that he joined the UNP while living in Sri Lanka because of his father’s political activities, and may cause the Tribunal to not accept that the applicant was threatened or targeted by any rival political parties or individuals as a result of his political views or activities in Sri Lanka, or that people had attended his mother’s home looking for him. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant undertook activities for the UNP. The correspondence noted that the inconsistencies may cause the Tribunal to not accept that the applicant is at risk of serious harm or significant harm in Sri Lanka because of his political activities, his imputed political activities or his father’s political activities.
The applicant provided a response to the Tribunal’s correspondence, stating that he had joined the UNP in 1996 after he completed his Year [grade] exams and that, when he joined the UNP, he didn’t have a national identity card because he was [age] years of age and the card is compulsory for citizens who are 16 years of age and older. The applicant stated that the identification number he was given when he joined the UNP was an identity card known as a postal ID issued by the Department of Post, which is valid for five years and is a photo identification card commonly used by students under 16 years of age. The applicant stated that the school obtained his postal ID for him in 1996 because he was in the school [Sport] team. When he joined the UNP in 1996, he gave his postal ID number as his identification number and did not provide his birth certificate because it has comprehensive details of him and his parents.
The explanation provided by the applicant did not alleviate the concerns the Tribunal had about the varying accounts he has given regarding his UNP membership and did not explain to the Tribunal why the applicant had told the Department delegate he had not joined the UNP until 2016 after e-memberships became available. The differing evidence the applicant has given about his UNP membership causes significant doubts for the Tribunal that the applicant was a UNP member or was active politically with the UNP in Sri Lanka.
Secondly, the applicant has given inconsistent evidence about his experiences in Sri Lanka as a result of his claimed political activities. In his written claims, the applicant said that he had returned to Sri Lanka in May 2013 and that two days after his brother’s wedding he returned to Australia to continue his studies. He said in his written claims that a few months later, his mother had told him that a group of unknown men had come to his house and inquired about him and his father, and that they had returned in 2014 and threatened the applicant’s mother and had continued to attend the applicant’s house.
In contrast, at the Department interview on 8 February 2018, the applicant told the delegate that the second day after he returned to Sri Lanka in May 2013, he had received a phone call, the person had hung up and then some 15 to 20 minutes later, two guys on motorbikes had knocked at the door and threatened the applicant and requested money for their campaign. The applicant told the interviewer that this had happened on the afternoon of [date] May 2013.
Also in contrast, the applicant gave evidence at the Tribunal hearing that he was at his in-laws’ house, that he opened the gate and that two men on a bike came to him and asked where his father was. He gave evidence that the men asked for his support and threatened the applicant that if his father did not support the 2014 election, they would kill and kidnap the applicant. The applicant said that this happened early in the morning, at 9am to 10am. Later in the hearing, the applicant told the Tribunal that the incident had happened at his house in Kotte and that his in-laws were in the house at the time.
The applicant gave evidence at the hearing that the people found him at his brother’s wedding and he believed they had followed and been surveilling him. He gave evidence that guests at the wedding said there were people there asking about his father and about him.
The Tribunal asked the applicant during the hearing why he had not claimed, at the time he claimed protection, that there were people at the wedding looking for him and he stated in response that his father was not at the wedding, so the people knew he wasn’t in the country and the ‘next person’ is the applicant. The Tribunal took the applicant to his letter from March 2015 and noted again that he had not raised these claims at the time of claiming protection. The applicant agreed he had not mentioned this and stated he had mentioned he had returned to Australia after two days and is not sure why he didn’t mention this, and that he was very stressed during that period as his mother was calling constantly.
The Tribunal wrote to the applicant under s.424A after the hearing, noting the differences in his evidence as set out above, and stating that the information was relevant because the inconsistencies in the applicant’s evidence about when, where and whether men had come to visit him and threaten him prior to his brother’s wedding may cause the Tribunal to doubt the truthfulness of his claims, may cause the Tribunal to doubt that the applicant was approached or threatened by UPFA supporters while in Sri Lanka or that he had faced adverse attention in Sri Lanka because of his political activities, his political opinion or imputed political opinion. The Tribunal’s correspondence noted that the inconsistencies may cause the Tribunal to not accept the applicant was threatened or targeted by any rival political parties or individuals as a result of his political views or activities in Sri Lanka, or that people had been attending his mother’s home looking for him, or that he had undertaken activities for the UNP. The Tribunal’s correspondence noted that it may cause the Tribunal to not accept the applicant is at risk of serious harm or significant harm in Sri Lanka because of his political activities, his imputed political activities or his father’s political activities.
The applicant responded to the Tribunal’s correspondence, stating that his brother’s wedding was [in] May 2013 and he had booked his plane ticket for two weeks, from [date] May 2013 to [date] May 2013. He arrived in Sri Lanka [in] May 2013 and on the same date, the day before his brother’s wedding, he was confronted by two unknown men at his home in Kotte who demanded money and support for the UPFA election campaign and asked about his father’s whereabouts. The applicant stated that he refused to answer the questions and the men then threatened to kill him. He stated that he did not recognise the two men because they were on a motorcycle and their identities were concealed by tinted helmet visors. He stated that the incident happened at his house in Kotte and his in-laws were at his house in Kotte when the incident happened. He stated that during the Department interview and at the Tribunal hearing, he mentioned the incident had happened on [date] May 2013. He returned to Australia on [date] May 2013 because he knew it was no longer safe to stay in Sri Lanka and after he returned, he continued his studies because his first semester exams were in June 2013. He stated that after his brother’s wedding, rogue political rivals realised they could not reach his father and shifted their full attention to the applicant. His mother informed him that after his brother’s wedding, a group of unknown men constantly inquired about him and told his mother they were aware that his father had transferred his savings and business contacts to the applicant, and they demanded money for the UPFA election campaigns. The applicant stated that in the event of his failure to pay or support the campaign, the men had threatened to kidnap him. The applicant provided to the Tribunal an airline booking dated [date] May 2013 for a departure flight from Australia [in] May 2013 and returning to Melbourne on [date] May 2013.
The applicant’s failure to raise in his written claims what he claims was a significant incident of harassment and threats that he claims led to him leaving Sri Lanka early leads the Tribunal to have significant doubts about the claimed incident. The Tribunal notes the high educational level of the applicant and the level of detail in his written claims. The Tribunal considers it implausible that, if the applicant was threatened as he states he was, he would not have included this as part of his reasons for claiming protection and for fearing return to Sri Lanka.
In addition, the variations in the place at which the incident occurred, the time of day the applicant claims it occurred and his failure to raise claims about people looking for him at his brother’s wedding at the earliest opportunity, add further doubts for the Tribunal about the claimed incidents at the time of the applicant’s brother’s wedding. For these reasons, while the Tribunal accepts the applicant originally was due to fly home from Sri Lanka [in] May 2013, it has significant doubts that changes to his return flight were due to the claimed incidents.
Thirdly, the applicant gave evidence at hearing that his father is somewhere in Europe and has been granted protection, but he does not know where his father is. He gave evidence that his father calls his mother on January 1 each year and on his mother’s birthday but does not say where he is.
The Tribunal asked the applicant at hearing why his father is at risk in calling his mother, if he has been granted protection by another country and the applicant stated in response that his father believes that if he tells his whereabouts ‘they’ will hurt the applicant and his mother. The applicant stated he has not had contact with his father for 10 years and that his father does not call the applicant or the applicant’s brother, he only calls their mother. The Tribunal observed that there would be no risk in the applicant’s father calling his brother in Australia and the applicant stated that he has probably said he doesn’t want to talk to them. He stated that his father was granted protection in 2010 or 2012. The Tribunal asked why the applicant’s mother had not moved with him and the applicant stated that it is because of his grandmother, who is his father’s mother, who is now [age range] years of age and who has no one else to look after her.
The Tribunal considers it implausible that, if the applicant’s father has been granted protection in another country, he would not have contact with the applicant or his brother, or would be reluctant to tell the applicant’s mother where he is. The implausibility of this aspect of the applicant’s claims adds further doubt for the Tribunal about the credibility of his claims for protection.
Fourthly, the applicant claimed at hearing that his father had been threatened between 1994 and 1998, that he had faced death threats and felt it was not safe and that, due to the threats he faced, he didn’t want the rest of the family to stay in Sri Lanka. The applicant gave evidence that his mother had said no to relocating to Europe because she wanted the two children to be educated in Sri Lanka. The Tribunal expressed its disbelief during the hearing that, if the applicant’s father had received death threats and perceived the situation was not safe and that he needed to seek protection outside Sri Lanka, his mother would say no to this on the basis of the applicant and his brother being educated in Sri Lanka. The Tribunal observed that it did not make sense that the applicant’s mother would prioritise their education if the family was at risk as the applicant claimed. The applicant stated in response that this had caused arguments between his mother and father and his father had tried to convince his mother. He stated that his father had not taken him because his mother ‘didn’t allow’ it. The implausibility of the applicant’s mother remaining in Sri Lanka in circumstances where his father had received death threats and concerns for his safety, so that the two children could remain in school, adds further doubt for the Tribunal about the credibility of his claims.
Fifthly, the delay in the applicant claiming protection causes further doubt for the Tribunal that he fears returning to Sri Lanka for the reasons he claims. The applicant returned to Australia [in] May 2013 after his brother’s wedding and did not claim protection until 11 March 2015. The Tribunal asked the applicant about his reasons for his delay in claiming protection and he stated that he had wanted to finish his studies and had wanted to return to Sri Lanka and work in the family business and thought these incidents were a one-off but every time his mother called him, he realised what his father had gone through and decided he could not return to Sri Lanka and live a normal life. The Tribunal was not persuaded by the explanation given by the applicant. At the time the applicant returned to Australia in May 2013, he claims to have been threatened with abduction, had strangers turn up to his brother’s wedding, and to have had his father relocate overseas due to the severity of the threats he had received. The Tribunal considers it implausible that the applicant would delay claiming protection for almost two years if the threats he and his family had faced were as he claims.
The applicant submitted to the Department two written complaints purportedly made by the applicant’s mother in April 2001 and April 2008, a written complaint claimed to have been prepared by the applicant’s father in August 2007 (these were provided again to the Tribunal, in addition to a report the applicant claims was prepared in 2018) and a letter prepared by an MP stating that the applicant’s father is a supporter of their party. The applicant provided a document to the Tribunal headed ‘United National Party – Member Portal’. The document contains limited information, no photo and a different email address to that provided by the applicant to the Tribunal. The Tribunal notes that the use of fraudulent documents among Sri Lankan asylum seekers are reportedly common.[5] The Tribunal carefully considered these documents but found that the provision of these documents did not alleviate the significant concerns of the Tribunal about the credibility of the applicant’s claims. Given the prevalence of document fraud in Sri Lanka, and given the concerns of the Tribunal about the applicant’s evidence as set out above, the Tribunal finds that the documents provided by the applicant are not genuine documents. The Tribunal has accordingly not placed any weight on these documents.
[5] DFAT Country Information Report Sri Lanka, 23 December 2021, at 5.44.
The applicant also submitted to the Department various media reports relating to shootings and kidnappings of businessmen in various areas across Sri Lanka, and election monitoring reports outlining violence against people supporting the political process. The Tribunal accepts these documents as genuine documents but finds that they do not establish the applicant is at risk of harm in Sri Lanka because of his personal circumstances. The Tribunal has not placed any weight on these documents.
For the reasons set out above, the Tribunal does not accept that the applicant’s father was a party organiser for the UNP or collected money for the party. The Tribunal does not accept the applicant was actively involved with the UNP from 2001 to 2013, that his father received death threats from 1994 onwards or that the applicant and his father regularly received death threats. The Tribunal does not accept the applicant’s father left Sri Lanka because of death threats or that the applicant’s mother received anonymous calls after his father left Sri Lanka. The Tribunal does not accept that the applicant’s father is in hiding in Europe, that his father is too scared to call the applicant or tell his mother where he is residing, or that the applicant’s mother decided to keep the applicant and his brother in school in Sri Lanka despite his father having fled in fear of his life. The Tribunal does not accept the applicant joined as a member of the UNP in 2016 after e-memberships were introduced or that he had joined in 1996 by filling in a membership form.
For the same reasons, the Tribunal does not accept that when the applicant returned to Sri Lanka in May 2013 for his brother’s wedding, two men on motorbikes came to his house or his in-laws’ house and threatened to kill and kidnap him, or that people were at his brother’s wedding asking about the applicant or his father. The Tribunal does not accept that a few months after his brother’s wedding, men came to the family home and inquired about the applicant or his father, or that they returned months before the Presidential election and threatened his mother and pressured him to support the UPFA, or that they threatened to kidnap, torture and punish the applicant, or that they came frequently before and during the Presidential election in 2014. The Tribunal does not accept anyone has visited the applicant’s mother since he arrived in Australia, asking about him or his father or threatening him or his father.

The applicant claimed at hearing that the mayor of Kotte had come to their home in August 2020, requesting his mother’s help. He claimed at hearing that the mayor had returned two months later without a warrant and had searched the house for evidence of who they were sending money to. He claimed to have participated in a protest in Melbourne, following which an officer had attended his mother’s home asked his whereabouts. He claimed that, following Rajapaksa’s resignation in May 2022, the mayor came to their house, ‘furious and crying’ and said he would kill the applicant and his father.
The Tribunal observed in response to this evidence that the applicant’s father had been overseas for two decades by that time and the applicant stated yes, but they still have that anger and want to kill the applicant. The Tribunal observed that the UNP was still in existence, with current members, and asked why the UPFA would focus on his father’s involvement 20 years ago rather than on current members. The applicant stated in response that they want to know donors and there is still anger there.
The Tribunal’s doubts about the applicant’s claims, as set out above, in addition to the implausibility of anyone seeking the applicant’s father two decades after he left Sri Lanka, leads the Tribunal to not accept that the mayor of Kotte had searched the applicant’s mother’s house, or that he had been aware that the applicant had participated in a protest in Melbourne, or that he had attended the applicant’s mother’s house in May 2022 and threatened to kill the applicant and his father.
The Tribunal has found, above, that the applicant was able to speak to the Tribunal about the UNP in some level of detail. The Tribunal did not consider that the applicant’s knowledge of the history of the party alleviated the Tribunal’s concerns about the applicant’s evidence, which are set out in detail above. However, the Tribunal is prepared to accept the applicant is a low-level supporter of the party and is familiar with the party’s history. The applicant gave evidence of having attended one protest in Australia in April 2022 and the Tribunal is prepared to accept the applicant has attended one protest since he arrived in Australia. The applicant gave evidence that he is on social media but ‘never mentions politics’. The Tribunal finds that the applicant would not come to the attention of the Sri Lankan authorities because of any political activity in Australia.
The applicant claimed at hearing to be sending money to the UNP every year. When asked for the details of how he was doing this, he then gave evidence that he is sending money to his mother who is then transferring money to the UNP. The Tribunal accepts the applicant is sending money back to his family in Sri Lanka, but because it does not accept the applicant is more than a low-level supporter of the party, it does not accept the applicant is providing any financial contribution to the UNP.
The Tribunal discussed relevant country information, relating to the current government and election process, with the applicant at hearing and invited the applicant to comment on the information. The Tribunal noted during the hearing that Sri Lanka has held regular democratic elections since independence and DFAT assesses that political parties are able to operate freely across Sri Lanka and to contest elections. Sri Lanka has a diverse political landscape with 70 registered political parties representing ethnic, religious and ideological interests.[6] As of July 2022, the head of the UNP, Ranil Wickremesinghe, was elected Sri Lanka’s President after the former president Rajapaksa fled the country following widescale protests over the economic crisis in Sri Lanka.[7] The applicant stated in response to this information that just because Wickremesinghe is the Prime Minister doesn’t mean that there is support for him and, when the UNP ruled from 2015 to 2019, there were threats from the other party. The Tribunal asked why the applicant would be at risk in Sri Lanka given the leader of the UNP is now Prime Minister of Sri Lanka and the applicant stated that the UNP holds only one seat out of 225 members in Parliament and out of 22 districts, the majority are still SLPP members. The Tribunal observed that Colombo, where the applicant is from, is a UNP stronghold, and the applicant stated in response that Colombo is separate to Kotte where he is from.
[6] DFAT Country Information Report Sri Lanka, 23 December 2021, at 3.38.
[7] Al Jazeera, Profile: Ranil Wickremesinghe, Sri Lanka’s new president, 21 July 2022 at
The Tribunal has found, above, that it accepts the applicant was a low-level supporter of the UNP when he previously lived in Sri Lanka but that he and his father did not come to the attention of any members from rival parties due to their political views. The applicant has participated in one protest in Australia in a ten year period and has not otherwise been politically active while living in Australia. The Tribunal is prepared to accept that, if he returns to Sri Lanka, the applicant would continue to support the UNP at a low level. The Tribunal finds that the level of support the applicant would provide to the UNP would not bring him to the attention of any members of other political parties in Sri Lanka.
The Tribunal finds that applicant supports the party which represents the current President of Sri Lanka. The Tribunal finds that the applicant would return to the outskirts of Colombo, an area supportive of the UNP, where the applicant previously lived and where his mother continues to reside in the family home. The Tribunal does not accept that Kotte is a separate area to Colombo on the basis that it is in the outskirts of Colombo and is considered a suburb of Colombo.[8] The Tribunal finds that the chance of the applicant facing adverse attention from anyone because of any low-level support of the UNP is remote.
[8]
Taking into account these matters, the Tribunal finds that there is not a real chance the applicant faces serious harm because of his political opinion or imputed political opinion, if he returns to Sri Lanka now or in the reasonably foreseeable future.
Economic claims
The applicant claimed in a letter he provided to the Tribunal, dated 26 May 2022, that Sri Lanka’s population has been hit by rising inflation, shortages of fuel and essential goods, and prolonged power cuts, with the government’s inability to pay for imports having a consequent impact on education, health and an adequate standard of living. The Tribunal asked the applicant about these claims at the hearing and he stated to the Tribunal that prior to the COVID-19 pandemic, Rajapaksa had promised to decrease taxes but then, during COVID-19, there were lockdowns and no tourists. Rajapaksa gave 5,000 rupees to people in rural areas, inflation increased and there was no money to buy supplies. People have no money and, since the war in Ukraine commenced, they have lost 80% of their incomes.
The Tribunal asked how the applicant was personally at risk of harm because of these matters and he stated that they want to stop funding to the UNP and they hold a grudge because as a UNP member he hasn’t supported any elections. The Tribunal observed that it could not see the applicant was at risk of serious harm because of the economic situation in Sri Lanka, given he has tertiary qualifications and a home to return to, and he stated that he cannot get a licence to operate a business.
The Tribunal noted during the hearing that returnees to Sri Lanka are returned by commercial or charter flights and in some cases are accompanied by security escorts. On arrival in Colombo, returnees are presented to Immigration and are interviewed by the Chief Immigration Officer and, depending on their departure and personal history, may also be interviewed by other agencies. Individuals who departed illegally are referred to CID and charged, and taken to the courts and bailed and released. DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure. Returnees are provided with cash and onward transportation assistance by the IOM and, prior to departure from Australia, are given cash from Australian Border Force. Returnees travelling on temporary documents undergo an investigative process to confirm their identity, including by the CID interviewing the passenger, and contacting police and neighbours and family in their claimed home area. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.[9]
[9] DFAT Country Information Report Sri Lanka, 23 December 2021, at 5.17 – 5.20.
Refugees and failed asylum seekers are reported to face practical challenges to successful return, and many have incurred significant expenses or debt to undertake their journey. Many returnees have difficulty finding suitable employment and reliable housing on return. Those with skills in high demand in the labour market are best placed to find well-paid employment. DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities and that, where surveillance of returnees occurs, this can contribute to a sense of mistrust of returnees within communities.[10]
[10] DFAT Country Information Report Sri Lanka, 23 December 2021, at 5.28 & 5.32.
The applicant stated to the Tribunal that he disagrees with this information and questioned how he would be able to obtain employment and ‘live a normal life’ and that he had received death threats a month ago in addition to those received in 2018 from the mayor.
The Tribunal notes the media reports provided by the applicant prior to the hearing provide commentary on the general human rights situation in Sri Lanka, the prevalence of abuse by police and security forces,[11] the perceived deterioration of the general human rights situation within Sri Lanka in the first half of 2021,[12] and the violence around protests leading to Rajapaksa’s resignation.[13]
[11] Colombo Page, US Human rights report finds credible reports that Sri Lanka security forces committed numerous abuses’, 13 April 2022 at and Daily Mirror Online, ‘Abuse of police authority’, 10 November 2021 at opinion/ABUSE-OF-POLICE-AUTHORITY/172-224408.
[12] Daily Mirror Online, ‘Human rights situation in SL continues to deteriorate: UK’, 24 November 2021 at
[13] Reportedly from Al Jazeera website, the Tribunal has been unable to find the original article on the web.
The Tribunal accepts that Sri Lanka is currently facing an economic crisis, causing daily power cuts and shortages of fuel, food and medicines, and that a state of emergency was declared by former president Rajapaksa prior to stepping down.[14] The Tribunal accepts that failed asylum seekers face challenges in returning, including finding employment and housing. However, the applicant holds tertiary qualifications, has worked previously in Sri Lanka in both the family business and for a large international organisation, and has found work in Australia. He has a family home to return to in the outskirts of Colombo. The Tribunal is not satisfied that the applicant faces a risk of serious harm because of his race, religion, nationality, membership of a particular social group or political opinion, because of the current economic or human rights situation in Sri Lanka or as a returnee or failed asylum seeker. The Tribunal finds there is not a real chance the applicant faces serious harm for any of the reasons in s 5J(1)(a) because of the economic crisis in Sri Lanka or as a returnee to Sri Lanka or as a failed asylum seeker or for any or all of these reasons.
[14] BBC, ‘Sri Lanka: why is the country in an economic crisis?’, 14 July 2022 at
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether there is a real risk the applicant faces significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). For the same reasons as those set out above, the Tribunal finds that there is not a real risk the applicant faces harm in Sri Lanka because of his low-level support of the UNP or as a returnee to Sri Lanka or as a failed asylum seeker, or for any or all of these reasons combined.
The Tribunal has accepted, as set out above, that Sri Lanka is currently facing an economic crisis. The Tribunal observed during the hearing that the situation in Sri Lanka is one faced by the population generally and the Tribunal therefore may not find the applicant was at risk of significant harm because of this. The applicant stated in response that he doesn’t think he could find employment. Paragraph 36(2B)(c) of the Act provides that there is taken not to be a real risk a non-citizen will suffer significant harm if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. As the current economic crisis in Sri Lanka is faced by the population generally, the Tribunal finds there is not a real risk the applicant faces significant harm if removed from Australia to Sri Lanka.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3644

26 August 2022

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