1809947 (Refugee)

The applicant, a Sri Lankan national, sought a Protection (Class XA) (Subclass 866) visa based on claims of persecution due to his Tamil ethnicity, imputed political opinion, and membership in a particular social group, specifically his association with the Liberation Tigers of Tamil Eelam (LTTE) and the Black Tigers. The applicant contended that upon return to Sri Lanka, he feared arrest, interrogation, and torture by the Criminal Investigation Department (CID) due to these associations and his illegal departure from Sri Lanka. The matter came before Deputy President Jan Redfern of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires the applicant to be a person in respect of whom Australia has protection obligations under the Refugees Convention. This involved determining if the applicant had a well-founded fear of persecution for a Convention reason, where persecution is defined as serious harm involving systematic and discriminatory conduct that is official, officially tolerated, or uncontrollable by the authorities. The Tribunal also considered the objective element of a "well-founded fear," requiring a "real chance" of persecution, not merely a remote or insubstantial possibility.

The Tribunal's reasoning focused on assessing the credibility of the applicant's claims in light of updated country information and the evidence presented. It noted that while previous tribunals had questioned the applicant's credibility due to perceived shifts in his claims, the Federal Court had previously found that some of these claims had indeed been made to the original delegate. The Deputy President accepted that the applicant's profile, including his close association with a high-profile Black Tiger (his brother), his other brothers' involvement with the LTTE, his own past links to an LTTE-associated organisation, and his illegal departure while still subject to reporting conditions, would likely lead to identification and further questioning, possibly close monitoring, by Sri Lankan authorities, particularly in light of increased vigilance post-Easter bombings. The Tribunal concluded that there was credible information suggesting Sri Lankan authorities might have an interest in someone with the applicant's profile upon return.

Consequently, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention, thus meeting the criterion set out in section 36(2)(a) of the *Migration Act*. The matter was remitted for reconsideration with a direction that the applicant satisfies this criterion.