1814352 (Refugee)

The applicant, a Sri Lankan citizen, sought a protection visa (SC 866) after arriving in Australia in 2016. The dispute arose when the Department of Home Affairs delegate refused the visa application, finding that the applicant was not at risk of harm upon return to Sri Lanka. The applicant claimed he faced persecution due to his past support for the Sri Lankan government and his family's political affiliations, including threats, extortion, and physical assault following a change in government.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically whether he had a well-founded fear of persecution for reasons of political opinion. The court also considered, as an alternative, the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that the applicant faces a real risk of suffering significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal accepted the applicant's evidence regarding his past involvement with a government party, the loss of business contracts, and the subsequent threats and physical harm he experienced. It found that the applicant's claims were unembellished and persuasive, and that state protection was not available to him in Sri Lanka. Consequently, the Tribunal concluded that the applicant satisfied the refugee criterion under section 36(2)(a) of the Migration Act.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act. As the applicant was found to meet the refugee criterion, the Tribunal did not consider the alternative provisions for complementary protection.