1900102 (Refugee)

This matter concerned an appeal by the first and second named applicants, a Sinhalese Sri Lankan couple, against a decision not to grant them protection visas. The first applicant, the husband, had worked at the airport in Sri Lanka and claimed to fear returning due to an incident in 2007 where two friends, one a customs officer, allegedly facilitated the smuggling of communication equipment to the Liberation Tigers of Tamil Eelam (LTTE). He stated that his friends were arrested by the [Agency 1], tortured, and one remained unaccounted for, while the other was released severely disabled and suffering mental health issues. The applicants have two children born in Australia, one of whom is an Australian citizen, and the other will become one in 2024.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa, specifically under section 36(2)(a) of the *Migration Act 1958* (Cth) as refugees, or alternatively under section 36(2)(aa) as persons facing a real risk of significant harm as a necessary and foreseeable consequence of removal to Sri Lanka. The Tribunal was required to consider the definition of "refugee" and "well-founded fear of persecution" as outlined in sections 5H and 5J of the Act, as well as the meaning of "significant harm" under section 36(2A) and the circumstances where such a risk is not taken to exist under section 36(2B). The Tribunal also had regard to Ministerial Direction No. 84 and relevant guidelines and country information.

The Tribunal affirmed the decision not to grant the protection visas. While acknowledging the applicant's account of the 2007 incident and the alleged mistreatment of his friends, the Tribunal found that the applicant had not established a well-founded fear of persecution for himself or his wife. The Tribunal noted that the applicant was not directly involved in the smuggling, was unaware of his friends' actions at the time, and only learned of the incident approximately a year later. Furthermore, the Tribunal considered that the risk of harm was not personal to the applicant and that effective protection measures were available in Sri Lanka. Despite affirming the decision, the Deputy President urged the Minister to consider intervening in the case for the granting of appropriate permanent visas to the applicants, taking into account the circumstances of their Australian-born children.