1831316 (Refugee)

[2023] AATA 4043

1831316 (Refugee) [2023] AATA 4043 (18 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Michelle Gunaratne (MARN: 0958672)

CASE NUMBER:  1831316

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Katherine Harvey

DATE:18 August 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2023 at 5:12pm

CATCHWORDS

REFUGEE – Protection visa – Sri Lanka –political opinion –  member of Sri Lanka Freedom Party – no evidence before it that a current or credible threat exists against the applicant – SLFP membership documents are fraudulent – applicant did not provide any evidence that a current or credible threat exists – mental health difficulties – applicant does not have a well-founded fear of persecution –  credibility concerns – fabricated his claim in order to be granted a protection visa – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 91, 411, 499

Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka) and is [age] years old. He travelled to Australia three times in 2016 and most recently arrived on [date] August 2016 on a visitor visa.

3. On 25 November 2016, the applicant applied for a protection visa.

4. On 10 October 2018, a delegate of the Minister refused to grant the visa.

   The review application

5. On 25 October 2018, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decisions is reviewable under s 411(1)(c) of the Act.

6. On 26 April 2023, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone.

7. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 May 2023 and to provide all documents he intended to rely on to support his case by 9 May 2023.

8. On 16 May 2023, before the hearing commenced, the applicant was unable to maintain a video and audio connection to Microsoft Teams from his device. The hearing was rescheduled to the next day, so that the applicant could join from the AAT office in Canberra.

9. The applicant appeared before the Tribunal on 17 May 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstance of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Sinhalese and English languages. The applicant chose to provide the majority of his evidence in English. The Tribunal is satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.

10. The applicant was represented in relation to the review and his registered migration agent also attended the hearing by Microsoft Teams.

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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

17. The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.

18. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

19. The applicant’s personal details are set out in his application for protection. He is a [age]-year-old man who was born and lived in [City 1], Sri Lanka.

20. He provided details about his wife, two children and mother, who live in Sri Lanka, and a friend from [City 1] who is an Australian citizen living in Victoria. He worked as a [Occupation 1] in [countries], and visited [various countries for work purpose]. Most recently in Sri Lanka he ran a [business]. At the hearing, he explained that he is running a [business] in Canberra.

    Country of reference

21. The applicant claims that he was born in [City 1], Sri Lanka. He provided copies of the biodata pages of his (then) current and previous Sri Lankan passports.

22. The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is the receiving country for the purpose of s 36(2)(aa) of the Act.

    Summary of claims

23. With his protection visa application, the applicant attached a statement of claims dated 25 November 2016, in which he claimed that he has 25 years’ experience as a [Occupation 1], he has been a [occupation] [for] many years, was a brand ambassador for several companies and has a fan base of over 250,000 fans around the world.

24. He claimed that he had written to [a government agency] offering to assist them develop and implement [strategies] in the army.

25. He claimed he was affiliated and worked closely with the government of President Mahinda Rajapaksa and helped launch and develop a [concept]. He started delivering the concept from [City 2] and went through the eastern province.

26. He claimed that he used his influence and the [programs] to help the government settle the matter of Buddhist pilgrimages being harassed when going into India.

27. He claimed that the then defence secretary Mr Gotabhaya Rajapaksha suggested a program called ‘[name]’ around the world and he was highly associated with setting up these festivals and working closely with government officials. He organised programs in [various countries] etc.

28. He claimed that Army commander [invited] him to go to the main training camp [to] train army officials and other ranks in [concepts]. He claimed that he worked for over a year and had good relationships with the army and government.

29. He claimed that for the January 2015 Presidential elections, he was given an active task [details deleted]. He claimed that at the [events] he was compelled to criticise the coalition government and he did get some threats to stop campaigning but did not think it would create problems for him as he was confident that the president would win.

30. He claimed that the new government-influenced underworld thugs kept searching and harassing Mahinda supporters.

31. He claimed that a [event] in Australia was a good opportunity for him to stay away owing to harassment, interrogation and investigation of political members he had associated with from the previous government.

32. He claimed he received a very distressing call from his wife saying a group of officials came to his home and questioned her about when he was returning. They said that he was needed for questioning over some political issues.

33. He claimed he was well aware of the interrogation and harassment of many Rajapaksha supporters who has been tortured and kept in jail cells without proper judicial process.

34. He claimed he cannot live in Sri Lanka in hiding as he needs to meet [people], that his profile is fully transparent on social media and that he cannot earn a living in hiding.

35. He claimed that his wife and children are very scared and traumatised as they have never experienced this sort of threat in their life.

36. He claimed that if he returns to Sri Lanka, his life and his family will be in great danger.

37. Before his protection visa interview with the delegate, the representative provided:

    ·   an affidavit from the applicant’s wife, [name] residing at [address] dated 30 June 2018

    ·   a handwritten report from Dr [A], [a] Surgeon, [a] Hospital dated 20 November 2015

    ·   a handwritten list of medication from Dr [A], [a] Surgeon, [a] Hospital dated 18 November 2015

    ·   a handwritten invoice on [a] Pharmacy letterhead dated 18 November 2015

    ·   a letter from [Mr B] MP, [Organisation 1] dated 15 June 2015, and

    ·   photos of the applicant.

38. After his protection visa interview with the delegate, the representative provided:

    ·   a copy and certified translation of a Sri Lanka Freedom Party 2017 membership card

    ·   a copy and certified translation of an extract from the information book of [City 1] Police Station dated 18 November 2015

    ·   a certified translation of a certificate of registration of an individual business dated 15 January [2015] with the applicant listed as the owner and his home address of [address] listed as the principal place of residence, and

    ·   a copy and certified translation of a letter from [name] dated 19 July 2018 saying that the applicant had done a great deal of work at the Election Control Centres for the SLFP victory and was an active member of the Election Control Committee in 2015. He also wrote that after the 2015 election, the present government had been ‘remanding, imprisoning and killing our members by charging/indicting baselessly and revenging politically’.

39. On 10 May 2023, the applicant’s representative submitted a submission dated 9 May 2023 claiming the applicant feared harm in Sri Lanka owing to his political opinion and that he would be subject to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment because he actively campaigned and voiced his opinion against the government. She also claimed he had suffered from severe psychological strain and mental trauma given he has not been with his family for many years. The representative also submitted eight pages of hyperlinks about murders from 2018 to 2021.

40. On 10 May 2023, the Tribunal drew the representative’s attention to the Practice Direction for protection visa cases and protection findings cases, in particular:

    11.7 If you want the Tribunal to have regard to particular information about the situation in the country of origin relevant to the application (country information), you should: (a) lodge a copy of that country information with the AAT; and (b) explain in your written submissions which parts of the information you rely on and why it is relevant to your review.

    Note: You should not simply give the AAT a list of documents or a list of links to publicly available country information.

    The Tribunal asked the representative to resubmit the submissions in accordance with the Practice Direction by providing the Tribunal with the material she referred to in links.

41. In response to the request to comply with the practice directions, the representative submitted 81 screen shots of extracts of articles about murders and the discovery of bodies from 2018 to 2021. No explanation of the screenshots or any other information was provided.

42. On 10 May 2023, the applicant’s representative submitted a statement dated 9 May 2023 in which the applicant claimed that in 2016, some Sri Lankan political parties made him come to Australia to seek ‘help to get out of the deadly threats’ he was getting from the government and ‘those political parties in Sri Lanka’.

43. He claimed he worked as a [Occupation 1], a humanitarian and engaged in a lot of charity work in Sri Lanka and that he has a huge fan base on his [social media] page and he shares his knowledge with Sri Lankans around the world and helps many Sri Lankans who need help.

44. He claimed in 2016 he received many deadly threats and attacks from the government of Sri Lanka and now has some defects with his right ear, his teeth and a patch near his eye. He claimed he was injured because he supported one political party on a major scale and for encouraging other people towards one party.

45. He claimed that after the Easter Sunday attack in 2019 he is pretty sure that the government is very irresponsible about their citizens and ‘the threats which I came through were done by the government of the country or from a main political party’.

46. He provided html links of examples of people who had suffered murder, abuses and robberies.

47. He claimed that his family in Sri Lanka lives with a lot of difficulties and fear because of the threats coming towards them and he has not visited Sri Lanka since 2016 because of the deadly threats.

48. He claimed that living in an irresponsible country is very fearful and Sri Lanka does not have a properly functioning law system.

49. He claimed that many other people in Sri Lanka have been subjected to the same difficulties as him and he requested proper protection for he and his family from the Australian government.

50. On 16 May 2023, the representative submitted a patient health summary for the applicant from [a medical] Centre dated 10 May 2023. No explanation of the document was provided and no other claims were made.

51. At the end of the hearing, the representative sought clarification about how to provide evidence from social media platforms like Facebook and YouTube. The Tribunal invited the representative to submit what she thinks would be appropriate to show what the applicant had said on social media relating to his claims. The Tribunal confirmed with the representative that it required the original content and an English translation by a NATTI-certified[1] interpreter. The applicant was invited to provide any additional evidence to the Tribunal by 31 May 2023.

    [1] NAATI – National Accreditation Authority for Translators and Interpreters.

52. On 25 May 2023, the representative submitted:

    ·   a letter dated 25 May 2020 from Dr [C], Clinical and Forensic Psychologist to Dr [D] about the applicant

    ·   a letter from Dr [D] dated 24 May 2023 about the applicant, and

    ·   a GP Mental Health Treatment Plan dated 24 May 2023 for the applicant.

    No explanation of the documents was provided and no other claims were made.

53. No material from social media platforms was provided to the Tribunal by 31 May 2023, no extension of time was sought and no material from social media platforms was received by the time this decision was finalised.

    Assessment of claims and evidence

    Has the applicant experienced harm?

54. In his application for a protection visa on 25 November 2016, the applicant advised that he received assistance from his representative in completing the form. In his statement of claims that accompanied his application, the applicant claimed that he had received some threats to stop campaigning in 2015 while in Sri Lanka. He did not claim to have experienced any other harm.

55. Before his interview with the delegate, the applicant’s representative submitted an affidavit from the applicant’s wife dated 30 June 2018. In the affidavit, his wife claimed that she remembered in early 2015, one day when her husband was coming home, an unknown group of people wearing clothing similar to a military uniform had hurt and tried to shoot her husband. She said that fortunately he saved his life but he was injured badly and lost four teeth.

56. At the hearing, the applicant said that he was a [Occupation 1] doing a lot of [programs] in Sri Lanka. He said that in 2015 he was driving his car to [City 1] when unknown gunmen came from a van and stopped his car and tried to hit him and kill him. He said that it was four to five people with guns and they pointed their guns at him, hit him and tried to do something but luckily lots of people gathered and the men jumped back into their vehicle and left. He said that he lost four teeth, he can’t hear on the right side and they broke his leg. The applicant removed a plate from his mouth to show his false teeth. The applicant said that he was admitted to a private hospital in [City 1] and that he was scared if he went to a government hospital. He said that the attack happened ‘somewhere in 2015, in February or March or something like that.’

57. The Tribunal clarified with the applicant what he meant by his leg being broken. He said that they hit his leg but did not break it in two pieces. He said that they did some injuries to his knee. He said, ‘I would say hurt my leg’.

58. Later in the hearing, the Tribunal explained that the information the applicant provided about the incident at the hearing differed from the information he provided to the Department. The applicant said that he couldn’t exactly remember the exact date, but it was February or March 2015. The Tribunal explained that the hospital invoices are dated November 2015 and the applicant then agreed that November 2015 was the correct month. He said all the problems started happening after the 2015 elections. He said that his problems started in February or March 2015 and then continued.

1. The applicant blamed his current health problems for the contradictory dates. He said that clearly he has memory problems and he tends to forget, and that these things happened a number of years ago in 2015. The Tribunal carefully considered that the claimed incident in February/March or November 2015 occurred more than seven years ago. The Tribunal accepts that this is a considerable period in the past and that people’s recollections of events can be affected by the passage of time. However, the Tribunal considers that this attack would have been a significant event in the life of the applicant and his wife. The Tribunal notes that the applicant’s protection visa application was submitted within 20 months of the purported attack and that the applicant’s wife provided her statutory declaration five years ago. In this context, the Tribunal does not accept the applicant’s explanation that memory problems account for his changeable evidence of when the attack occurred, and the inconsistent evidence he provided from his wife, [City 1] Hospital, [a] Pharmacy and [City 1] Police Station. The Tribunal accepts that the applicant has some false teeth and hearing loss and that there may be a range of reasons for having false teeth and hearing loss. The Tribunal does not accept that having false teeth and hearing loss means the applicant’s claims are true. Based on the applicant’s changeable evidence and the contradictory supporting evidence provided by the applicant, the Tribunal does not accept that the applicant was threatened to stop campaigning or attacked and injured in 2015. The Tribunal finds that the applicant manufactured this claim and the Tribunal finds that the manufactured claim impinges significantly on the credibility of the applicant.

   Political activities and advocacy

2. At the hearing, the applicant claimed to fear harm from politicians or multinational companies that are using unnecessary substances in food.

3. The applicant provided the Department with a letter from [Mr B] MP, [Organisation 1] dated 15 June 2015. As discussed at the hearing, the decision record, a copy of which was provided by the applicant to the Tribunal, details that the [Organisation 1]’s website URL failed to return a functioning homepage and the last message on its [social media] homepage was posted in July 2016, leading the delegate to conclude the organisation no longer existed. When this was put to the applicant, he responded that it still exists. He was invited to provide supporting evidence. No evidence has been provided that suggests [Organisation 1] is operational.

4. At the hearing, the applicant said that [Mr B] MP, the [title],[2] is one of his close friends. He said they grew up together, that they went to different schools but are good friends. The applicant said in the lead up to the Presidential election [Mr B] said ‘Bro, can you come and help me on this matter. We need your support because you’re having a huge fan base and everyone in the country knows who you are. I told him yes, of course – couldn’t say no’. The applicant said that he did so many projects with them during the campaign, and then after Mahinda Rajapaksa lost the election he was in a dangerous position because he had worked strongly to bring Rajapaksa back into power.

   [2] [Mr B] MP is the current Member of [Parliament].

5. The applicant said that he feared that he either had to work with them or he had to die. He said that if you say no, you die. The applicant was asked why he thought his good friend would seek to kill him. He said that it was not [Mr B] who would kill him, but there are unknown people, underworld politicians in the system. He said that Mr [Mr B] was just another person at the time asking for a favour. He said that Mr [Mr B] is not doing anything harmful.

6. At the hearing, the applicant was asked why he had joined the Sri Lanka Freedom Party (SLFP). He said because his friend was there and asked him to come and join. He said he was a member but that was just a membership, nothing else. He said that he joined in 2011 or 2012 or something like that. He said that he was no longer a member of the SLFP and that he had ceased being a member in 2015 because he did not have anything to do with them.

7. As discussed at the hearing, the decision record details that the applicant stated at the interview that he had no documentary evidence of his SLFP membership but after the interview he provided uncertified purported copies of his 2017 SLFP membership card, and the accompanying English translation showed he joined the SLFP on 5 February 2012. At the hearing the applicant was asked if he wished to comment or respond to the discrepancy in the information provided to the delegate that he was an SLFP member in 2017 and to the Tribunal that he ceased being an SLFP member in 2015. The applicant said ‘I have nothing to say’.

8. At the hearing, the applicant was asked about the letter from Mahinda Rajapaksa, the former President of Sri Lanka, dated two days after his interview with the delegate that he provided to the Department after his interview in response to concerns expressed by the delegate about the applicant’s lack of evidence supporting his claims that he was politically active supporting Mahinda Rajapaksa. 

9. The applicant initially claimed that he had told Mr Rajapaksa that he was having a problem in Sri Lanka and Mr Rajapaksa said that it was not the time for him to come back to Sri Lanka. The applicant was asked to clarify what he was saying. He clarified that the previous president told him it was not the time for him to come to Sri Lanka. He said that he spoke to him sometime in 2016 but he does not remember the date and the time. He said that he told Mr Rajapaksa that he was having difficulty and some people were chasing him and asked him his opinion. The applicant said that he was in Australia when he had this conversation and he called before the interview with the Department of Home Affairs. When asked why he had not told the delegate of this conversation the applicant said that they had been speaking verbally and the verbal conversations no longer existed. The Tribunal asked why the applicant had the phone number of the former president and he had spoken to him about his safety in Sri Lanka but he did not explain this to the delegate. The applicant said that he did not go through to him straight away, that he went through with his friend [and] then he said that he had not spoken with the former president personally. When the applicant was asked to clarify whether or not he had spoken to the former president he said he had not and he apologised.

10. The Tribunal reminded the applicant that he could use the interpreter if he was not comfortable providing his evidence in English and that it seriously went to his credibility when his story changed during the hearing. The Tribunal explained that it had serious concerns about the credibility of the applicant’s evidence and invited him to explain again how he obtained the letter from the former president. He said that he got the letter through his friend and his friend is the one who spoke to the former president and his friend may have told the former president that it was the [Occupation 1] who was doing programs and helped. The applicant said that he spoke to his friend ‘long back’, somewhere in 2016. When asked when he told his friend that he needed a letter from the former president the applicant said that he did not remember the exact date and time. He then said that he did not ask for a letter, but they issued him a letter because he told them he was having problems. He then said that after the interview with the delegate he told them that he needed a ‘proof document’ because they were not believing his story.

11. At the hearing, the applicant was asked why he had not provided a letter from his friend [Mr B], [supporting] his claims. He said that he had not spoken to him for the last five years and [Mr B] had changed parties.

12. As detailed in the decision record, in response to the delegate’s concerns about the lack of corroborating information from his political party or politicians attesting to his political involvement and support, the applicant submitted a letter purportedly written by former President Mahinda Rajapaksa post interview. In the letter, the former President said the applicant had done a great deal of work actively at all Election Control Centres for the SLFP victory and was an active member of the Election Control Committee in 2015, yet in his interview he made no mention of an ongoing personal relationship with the former President of Sri Lanka. When this was raised with the applicant at the hearing, the applicant said that during the election campaign he was working under [Mr B] and he was involved with polling booths and vote counting activities in the [City 1] area. When asked why he had not mentioned this earlier, the applicant said that his impression was that it was not major political involvement and he would just do tasks that his friend asked him to do. The Tribunal is not satisfied that the applicant has a reasonable explanation for why this evidence was not presented before the primary decision was made. The Tribunal discussed the country information which says that DFAT assesses that document fraud is common in Sri Lanka.[3] The applicant said that he could give a firm reassurance that his letter is genuine but he could not comment about other people producing fraudulent documents.

    [3] Department of Foreign Affairs and Trade DFAT Country Information Report Sri Lanka (23 December 2021) 51.

13. At the end of the hearing, the representative asked about providing evidence of the applicant’s activities on social media. She claimed that the evidence of the applicant actively voicing his opinion and speaking against the current government is on [social media] and that it is difficult to provide that evidence.

14. The Tribunal reiterated that currently there was no evidence before it that a current or credible threat exists against the applicant and there is no evidence that if he had to return to Sri Lanka now or in the foreseeable future that a real chance or real risk of serious or significant harm exists.

15. The Tribunal invited the representative to submit what she believed was appropriate to show what the applicant said on social media and the Tribunal explained that the information needed to be provided in its original form with a NAATI-certified translation into English. The representative said that she would discuss this with the applicant and the Tribunal provided two weeks to provide additional evidence. No evidence about the applicant’s social media activities was provided within the timeframe given, no request was made for additional time to provide evidence and no evidence about the applicant’s social media activities was provided by the time the decision was finalised. 

16. Based on the evidence before it, including the country information and the changeable evidence from the applicant, the Tribunal finds that [Organisation 1] is no longer operational, that the applicant is not and has never been a member of the SLFP, that the SLFP membership documents are fraudulent, and that the letter from Mahindra Rajapaksa is fraudulent. The Tribunal does not accept that the applicant fears harm in Sri Lanka owing to his political opinion. The Tribunal does not accept that he would be subject to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment, because he actively campaigned and voiced his opinion against the government. The Tribunal does not accept that the applicant has used his social media platforms to express political views against politicians or multinational companies. The Tribunal finds that the applicant has manufactured his claims of his political engagement and activities and profile to support his claim for asylum in Australia. 

    Threats

17. In the affidavit from the applicant’s wife dated 30 June 2018 she claimed that on 18 November 2016 at about 8.40 pm, three people who were dressed in clothes similar to military uniforms came to their house and held their weapons to their heads and asked for [the applicant]. She explained that he was not in Sri Lanka and they searched the home. She and her children were shocked and scared and she now lives with her parents. She claimed that she told her husband not to come back to Sri Lanka to save his life.

18. In his submission dated 9 May 2023, the applicant claimed that some Sri Lankan political parties made him come to Australia to seek ‘help to get out of the deadly threats’ and he claimed in 2016 he received many deadly threats and attacks from the government in Sri Lanka and now has defects with his right ear, teeth and a patch near his eye. As detailed above, the Tribunal does not accept that the applicant was attacked and injured in 2015 and the Tribunal does not accept that the ‘defects’ mean the applicant’s claims are true.

19. At the hearing, the applicant explained that he had come to Australia to [work] at [a suburb] and get away from the situation. He said he had asked for a three-month tourist visa but was granted a one-year visa. While he was in Australia, his wife told him that the situation had not ended. He said that there were people who had been spying on his house for 3–4 months. He said that a group of gunmen in military uniform came to his house and were searching for him. He said his wife thought that they were military personnel. The applicant thought that this was sometime in October or November 2016. The applicant thought that the only link between him and the military is him teaching [to] the Sri Lankan air force and army.

20. He claimed that his wife told him she went to the police and reported the incident but there had not been an investigation.

21. At the hearing, the applicant claimed that he had received many deadly threats and attacks from the government and calls to step down what he was doing. He said that the threats came in 2015, after the political power changed. He said that he received telephone calls to his mobile and his landline every two weeks, and then randomly, and then they talked to him on social media like messages and stuff. He said it was continuous and lasted until he was hit by them. He said that after that it went down because everyone knew he was here (in Australia). The applicant was asked if he had any records to support these claims. He said that they did not record everything because he never though he would ask for refugee status in Australia. He said that he did not take it very seriously but once a group of people came to his house, that’s when he decided it is going to continue.

22. The applicant was asked what is happening to his family now. He said that his daughter and son are studying in one of the most reputed colleges in the country and he does not want to destroy their education, so if someone asks them where he is, the children tell people their parents are divorced. He said that because of this they do not have any problem at this point. When the applicant was asked when the problems stopped, he said that they had never ended, that from time-to-time small incidents are happening. He said something is happening but they don’t know exactly what. He also said that if he shows that they are together as a family, the situation might be changed.

23. The applicant said that his children are being mentally abused by the students at school. When asked what the school had done about the abuse, the applicant said that it was not serious enough to raise with the school and that there was not a specific incident.

24. The applicant said that his children could not move freely, that they just go to school and come home. When asked about his daughter he explained that she was a deputy in the student council and is doing social work in the community. He said that she leads the thing and says at home, he said his children do minimal activities. When asked if there were any threats the applicant said that there is no gun pointing but verbal abuse can hurt girls more.

25. The applicant was asked if anything had ever happened to his family and he said no. He also said there was not a physical harm but there was a mental harm and that he cannot do what he wants to do on social media because of his children. He said that they are stopping his voice. He also claimed that he had [number] followers on [social media]. The applicant claimed that he is a humanitarian with a [concept]. The applicant said that during COVID-19 he worked with local government and human rights organisations giving out ration packs. He claimed that he funded the activities from his earnings in Australia and his business in Sri Lanka. He claimed that the politicians did not want to see the unity his concept brings. He said that the politicians want to keep people starving and poor.

26. As discussed at the hearing, the applicant did not provide any evidence that a current or credible threat exists. The applicant did not provide any evidence to support his claim to have [number] followers on [social media] or an active social media presence. The Tribunal does not accept that the applicant has felt constrained from expressing any political views or views about [Occupation 1] on his social media platforms. The Tribunal does not accept that the applicant has received threats, deadly threats or attacks from political parties or politicians in Sri Lanka or from the government or former government of Sri Lanka. The applicant has failed to provide a coherent, intelligible and plausible explanation for why he claims to be at risk of harm.

    Easter Sunday attacks

27. At the hearing, the applicant claimed that 350 innocent civilians died in the Easter Sunday attack and that the attack was a crime organised by Sri Lankan politicians. He claimed that this was evidence that the population, including him, is at risk from organised crime by politicians.

28. As discussed with the applicant, he had not provided any corroborative evidence to support his claim and the country information does not support his claims. The country information states that local Islamic extremist groups carried out the coordinated terrorist attacks.

    On 21 April 2019, local Islamic extremist groups inspired by Daesh (also known as Islamic State), carried out coordinated terrorist attacks against Christian churches and hotels. The attacks, comprising suicide bombers, killed more than 250 people and injured another 490 — the deadliest bout of violence and the first known terrorist attacks in Sri Lanka since the end of the civil war in May 2009.[4]

    [4] Department of Foreign Affairs and Trade DFAT Country Information Report Sri Lanka (23 December 2021) 8.

29. The Tribunal gives greater weight to the country information and does not accept that the Easter Sunday attacks were created or organised by Sri Lankan politicians. The Tribunal does not accept that the Easter Sunday attacks are evidence that the applicant and the Sri Lankan population are at risk from organised crime by politicians.

    News articles

30. At the hearing, the applicant was asked about the news articles that were provided to the Tribunal and how they related to his claims. He claimed that the articles show that kidnappings, torture and rapes are happening in Sri Lanka and that society has ‘gone down and collapsed’.

31. When asked how they related to his case, the applicant said that they are not specifically related to his case. He also said that whatever happens to anyone can happen to him tomorrow and that he did not trust the jury system and the law. The Tribunal finds that the news articles are general in nature and that they do not relate to the applicant directly or to his situation specifically. The Tribunal finds that the articles do not meaningfully support his claims and, accordingly, the Tribunal gives them little weight.

    Health

32. In a pre-hearing submission the applicant provided a patient health summary printed on 10 May 2023 from [a medical] Centre. The summary listed his allergies, current medications, active past history, inactive past history and immunisations.

1. At the hearing, the applicant said that when he is driving his car, he always feels like someone is following him. He said that he feels like that when a car is behind him for 5–10 minutes. During the hearing he also claimed that he had memory problems and memory issues.

2. He claimed that he went to his doctor and she has given him medication to deal with his high level of anxiety and depression. He claimed that he has been taking [medication] for anxiety and depression since 2020. The applicant claimed that he also does meditation. He said that he does not have a mental health plan. He said that the doctor has told him to do some therapy and use some apps and that sort of thing. He said that now, up to a certain extent, he is OK. He said that when he sees things in social media, he is getting really upset and has anxiety symptoms. He said that as long as he is here (in Australia), he is OK. He said that if he returns to Sri Lanka, even if they don’t kill him or harm him physically, he is still going through so many mental health difficulties that they can adversely affect him.

3. The applicant was invited to submit current medical information and in post-hearing submissions he provided a letter dated 25 May 2020 from Dr [C], Clinical and Forensic Psychologist, a letter dated 24 May 2023 from Dr [D] and a mental health care plan dated 24 May 2023. Dr [C] wrote:

   Thank you for your referral. I have consulted with the client on 6 sessions. Recently because he was unable to get a script in time he had some persecutory thoughts again. Otherwise his anxiety, depressive and stress symptoms are within the normal range. However given his unstable employment situation, he has a high risk of relapse.

   He is now supported by [an organisation], because he was not eligible for job keeper payment.

   He appears to have been persecuted in Sri Lanka and has difficulty cognitively to challenge those even being now in Australia for a while.

   He has been using an Automatic Thought Record engaged in regular exercise and still maintaining a relaxation regime.

   I would appreciate if you could approve 4 further session on a new referral.

4. The Tribunal carefully considered the letter from Dr [C] to the extent that it provides a professional psychological opinion. The Tribunal accepts Dr [C]’s diagnosis that the applicant had anxiety, depressive and stress symptoms that were within the normal range with his treatment. The Tribunal notes that Dr [C] does not detail what medication the applicant was prescribed and that his treatment included regular exercise and a relaxation regime. Dr [C] states that the applicant appears to have been persecuted in Sri Lanka. The Tribunal does not accept the reporting of the applicant’s claims in any way strengthens his claims, given that they are self-reports of the applicant.

5. In his letter dated 24 May 2023, Dr [D] wrote:

   This is to certify that [the applicant] has anxiety/depression +/- PTSD and had treatment in 2019. It was quite controlled and he did not need medication for one year.

   It relapsed recently and he has to take medication again and requires to see his previous psychologist again.

6. In the applicant’s GP Mental Health Treatment Plan, Dr [D] records the applicant’s reasons for presenting as ‘anxiety and panic attack’ and the history of current episode as ‘having Tribunal hearing for refuge visa and asylum status; had wife and 2 children not seen since he left 2016’.

7. The Tribunal accepts the diagnosis of Dr [D] that the applicant is suffering symptoms consistent with anxiety and/or depression and/or PTSD and that he is taking medication again. Based on the evidence from the applicant and the information in the mental health plan, the Tribunal accepts that the applicant is taking [medication] to manage his symptoms. The applicant did not provide any medical evidence to support his claim that he has memory problems or memory issues. The Tribunal does not accept that the applicant has memory problems or memory issues.

8. The Tribunal does not accept that the applicant suffering psychological symptoms confirms his claims to be true. The Tribunal notes that psychological symptoms may have a range of causes and as detailed above the Tribunal does not accept the central claims made by the applicant are true. In particular, while accepting that the applicant has anxiety, depressive and stress symptoms, the Tribunal does not accept that this confirms that the trauma that caused this is the trauma he claimed resulted from events in Sri Lanka, which the Tribunal has rejected for the reasons above. The Tribunal finds that any mental stress the applicant experiences from being separated from his family and because of the Tribunal hearing and process will be reduced on his return to his family and the outcome of this process.

9. The Tribunal notes that in the mental health treatment plan Dr [D] listed the applicant’s current medications as [deleted].

100.   At the hearing, the current country information for Sri Lanka was discussed:

Sri Lanka inherited a well-developed health care system at independence. The health care system has a long record of strong performance, including in maternal and child health and infectious disease control. The public health system offers universal free health care; however, regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Health outcomes are lower in the north and east. According to the World Health Organisation (WHO), the health system provides access to all ‘required medicines’ prescribed in the state system in Sri Lanka free of charge. However, the WHO also notes that the overall system ‘has not evolved and transformed appropriately to meet the changing demands of the demographic and epidemiological transitions.’ It notes that 26 per cent of out-of-pocket expenses for patients in the health system are for medicines. A local source reported that this leaves considerable expense for medicines acquired privately.[5]

101.   The applicant said that he has doubts about the reliability of the report as even in the government hospital a simple variety of medication is not available to patients. He said that the issue now is not ethnic but the availability of food and simple items. He said that there is not law and order in the country and that law enforcement is highly corrupt, so how can a person live freely and peacefully in the country? He said what he needs is to actually live in the country peacefully with his family fulfilling his basic needs. The applicant said forget the impact of COVID but look at the current situation, the direction that the country is going, huge debts and enormous economic crisis. He said they have increased significantly the tax, very high unemployment and a lot of people cannot have enough food. He said the thing is really if he doesn’t have enough food or medication when he’s sick, that means he doesn’t freely enjoy his basic human rights.

102.   The country information regarding mental health was discussed:

Sri Lanka offers some mental health services but there are gaps. Local sources suggest the health system has a strong mental health focus with a good cohort of trained counsellors, and a number of NGOs active in the sector. However, there are limited numbers of qualified psychologists and psychiatrists. The Ministry of Health operates the National Institute of Mental Health in Colombo which is the only state-run hospital dedicated to treating mental illness with 1,200 full-time staff and 1,500 beds. The National Institute of Mental Health admits over 8,000 patients annually.[6]

[5] Department of Foreign Affairs and Trade DFAT Country Information Report – Sri Lanka 23 December 2021, 11.

[6] Ibid, 12.

103.   The applicant responded that the reality on the ground is completely different and the report does not reflect that. He asked ‘how can you prove these things but I’m talking about the difficulties and injustices I had to face’.

104.   The applicant was asked if anybody would deny him access to health care if he returned to Sri Lanka now. He said that nobody would prevent him but the problem is that there is not enough medicine in the country. The applicant did not provide any evidence at the hearing or in post-hearing submissions to support his claim that there is not enough medicine. Country information indicates that food, medicine and other essentials were in short supply a year ago but that food, fuel and medicine are now available again.[7]

[7] Archana Shukla, ‘Is the worst over for Sri Lanka’s economic crisis?’ British Broadcasting Corporation 18 July 2023.

105.   The applicant was asked if he would be treated differently to anybody else in Sri Lanka. He responded that he is talking generally about everyone in Sri Lanka. He said the difficulties they are having in relation to getting health treatment, so he is lucky that he is living here in Australia.

106.   The Tribunal gives greater weight to the country information about Sri Lanka’s health care system and mental health services. The Tribunal notes that the applicant did not claim that he would be denied health care for any reason, and he did not claim that he would receive treatment that was different to the treatment provided to any other Sri Lankan. The Tribunal finds that any risk faced in relation to the applicant obtaining medical treatment and health care is a risk faced by the population generally and is not faced by the applicant personally. From the information provided by the applicant that he runs a [business] in Australia and that he worked as a [Occupation 1] in Sri Lanka, the Tribunal is satisfied that his medical conditions do not affect his ability to work. Based on the information before it, the Tribunal is not satisfied that the applicant’s health, including his mental health, will so impact his ability to work and care for himself as to amount to a real chance of serious harm or a real risk of significant harm if he returned to Sri Lanka now or in the foreseeable future.

107.   Having regard to the applicant’s ability to detail his claims and respond appropriately to questions and concerns raised at the hearing, and to the opportunity afforded to him at the hearing as well as his competent representation, the Tribunal is satisfied that in the context of his mental health symptoms as accepted that the applicant was given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments.

Economic situation in Sri Lanka

108.   At the hearing, the applicant said that he had additional problems being threats to his children’s futures because of the situation in Sri Lanka. He claimed that he is the only breadwinner for his family and that he has to support his family. He said that people are really struggling because they do not have enough petrol, gas or food items. He said that the moral values have significantly collapsed in Sri Lanka and there is a lot of crime.

109.   The Tribunal put to the applicant that he is a highly qualified person who owns a number of properties in Sri Lanka and that he would be able to work so that he could subsist. The applicant responded that the country was bankrupt and that even the rich people are now struggling and facing economic hardships. The Tribunal put to the applicant that he would not be facing a situation any different to anyone else in Sri Lanka. When asked if he wanted to comment, he responded ‘no comment’.

110.   Later in the hearing the applicant said that no matter how many properties or how much money you have there is no clear direction available to the people in the country. He said that politicians and political parties lie and they never tell the truth to the people but the people have to suffer.

111.   The Tribunal notes that, absent other considerations, economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee[8] or complementary protection criteria.[9] As discussed at the hearing, there is no information before the Tribunal that suggests that the applicant would not be able to secure employment that allowed him to subsist. Based on the information before it, the Tribunal finds that no one would deny the applicant the opportunity to seek and gain employment. The Tribunal does not accept that there is a real chance that the applicant will face significant economic hardship that threatens his capacity to subsist or that the applicant will be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.

Finding on refugee criteria

112.   The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

113.   The Tribunal considered whether there was a real chance of persecution if the applicant returned to Sri Lanka now or in the foreseeable future. Based on the evidence before it, the Tribunal finds that there is no real chance that the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. As the applicant does not have a well-founded fear of persecution, the Tribunal is not satisfied that the applicant is a refugee within the meaning of s 5H.

Finding on complementary protection criteria

114.   Having concluded that the applicant is not a refugee, the Tribunal considered whether there is a real risk that he will suffer significant harm. Considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will be subjected to any form of harm that would result in an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 4(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of life or the death penalty.

[8] Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 (at [99] per McHugh J); and SZTAL v Minister for Immigration [2016] FCAFC 69.

[9] MIMIA v VFAY [2003] FCAFC 191 at [60]; and BBK15 v MIBP [2016] FCA 680 (Buchannan J 8 June 2016) at [32].

Conclusion

115.   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).

1. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

118.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Katherine Harvey
Senior 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.

…