1902364 (Refugee)

1902364 (Refugee) [2024] AATA 4030 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902364

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Patricia Tyson
DATE:24 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 September 2024 at 12:47pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – homosexual – child sexual abuse – threatening letters – physical assault – punishment by mosque committee – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 20 April 2017. He claims to have been harmed in Sri Lanka because of his sexual orientation. The delegate did not accept the applicant is homosexual as claimed. The delegate concluded there is no real chance of the applicant facing serious harm and no real risk of him suffering significant harm on account of his claimed sexual orientation.
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.
CLAIMS AND EVIDENCE
Evidence to the Department
In his protection visa application and an accompanying statement, the applicant made claims which can be summarised as follows:
·The applicant is from a backwards village where Tamil and Muslim people live. His mother is Hindu and his father is Muslim. His family were at a very low social level.
·One day on his way home from school the applicant was forced into a dilapidated house by two men who carried out sexual atrocities which they recorded on their phone. The applicant did not tell anyone about the incident because the men threatened to publish it, and to harm him.
·Two days later, the applicant was again taken by one of these men who, on this occasion, spoke to the applicant kindly and apologised. After this he began to meet the applicant when school finished. They became close and began to engage in homosexual activities.
·The applicant stopped mixing with the man after his family came to know about it and scolded him. His father wanted to report the matter to police but the applicant’s mother stopped him because she was worried the applicant’s life would be in danger.
·As the applicant became older he became desirous of homosexual activities. He had a friend in the same class who was sympathetic to and interested in the applicant. One day the applicant told his friend about the sexual assault he suffered and his involvement in homosexuality. The friend told the applicant that this does not happen in their country but is permitted in other countries, that it was not a big issue, and that he was also interested in it.
·Later during school holidays the applicant remained at home while his family travelled to Colombo. The applicant and his friend engaged in homosexual activities for three days. During this time, a person near the house observed them and on the fourth day that person informed the mosque committee.
·Members of the mosque committee entered the house with sticks and weapons. They assaulted the applicant, causing a wound to his head. He escaped and ran away. They chased him but he got into a lorry and begged the driver. The driver sympathised and arranged for the applicant to travel to Colombo by train.
·The applicant told his parents what had happened. They hated him as he had not listened to them and had brought disgrace. Their home in the village was broken in to and their belongings burnt. They went to police but the police questioned the applicant disgracefully and vehemently and did not help them.
·They were alienated. They could not return to the village and moved to a Sinhalese majority place. Here they were ostracised and ridiculed. They could not live peacefully and the family alienated the applicant because he was the cause.
·While studying and looking for work, the applicant encountered a Buddhist monk who offered him work cleaning the temple after school. The monk invited the applicant to engage in homosexual activities, asking him not to tell anyone. The applicant cooperated and they often engaged in such activities. People in the temple came to know but could not take action against the monk as he was in charge. The applicant and the monk would engage in activities every day and go for meals. One day while they were going to have a meal a motor vehicle came at them very fast, causing the applicant to fall into a sewerage canal and wound his leg. Three shots were fired at them and the vehicle travelled in the direction of the police station. The monk told the applicant it must be a police act and that it would be dangerous to complain to police. The following day the applicant told his father about the incident and his father applied for a student visa.
·The applicant has experienced child sexual abuse. He does not have the freedom to live in his country. Homosexuals are treated disgracefully. He cannot live in his village as he is engaged in homosexual activities. There is no rule of law and he has not abided by the rules of mosque administration. A jihad group will kill the family.
·The applicant does not have protection. The police officer in charge of the village is Muslim and has to abide by mosque rules.
·If the applicant returns he will definitely be killed because of his homosexual engagement.
The applicant provided a copy of his Sri Lankan passport and Sri Lankan birth certificate and also submitted a blog post relating to gay men in Sri Lanka.
The applicant attended an interview with an officer of the Department on 6 December 2017, where he gave evidence expanding upon the written claims. He was also questioned about his life in Australia. Where relevant, the applicant’s evidence at the interview is discussed in further detail below.
On 14 December 2018 the Department sent the applicant a request for further information, asking him to advise if his circumstances had changed in any way since his protection visa interview. The delegate’s decision records that the applicant did not respond to that request.
Proceedings before the Tribunal
The applicant appeared before the Tribunal in person on 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages, who attended via Microsoft Teams.
The applicant gave evidence at the hearing about events in Sri Lanka that was broadly similar to his earlier claims, although with some significant differences which are discussed below. He raised new claims that he had been receiving threatening letters prior to leaving Sri Lanka and that after his departure his family had experienced problems including eggs and stones being thrown at them. The applicant’s evidence at the hearing is set out in further detail below.
On 8 August 2024 the Tribunal sent the applicant an invitation in accordance with s 424A of the Act. He was invited to comment on or respond to information arising from his protection visa interview on 6 December 2017 that undermined the credibility of his claims and that, subject to his comments, would be the reason, or part of the reason, for affirming the decision under review. On 21 August 2024 the applicant provided a written response which is discussed below.
FINDINGS AND REASONS
The issues in this case are whether the applicant’s claims are credible and whether there is a real chance of him being seriously harmed in Sri Lanka in the reasonably foreseeable future, or a real risk of him suffering significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims for protection relate to his claimed sexual orientation. The applicant gave evidence at the hearing that he identifies as gay, and that he first began to think of himself as gay when he was at school. Asked about this, he recounted having been sexually assaulted. He said that after this he met one of the men and would talk to him everyday, that he enjoyed it and that they had a sexual relationship for around two months. He gave this man’s name – [Mr A] – consistently with his evidence at the protection visa interview. At the time he had enjoyed it but had felt guilty and like it was wrong. He had not known he was attracted to men prior to then. He said he was [age] at this time and the man was an adult.
From that time, the applicant had been only attracted to males. He said he was confused but he thought the fault was with him, that it was something weird. He felt guilty but also thought that in time the feelings of liking men would go away. He said some boys made fun of him for his behaviour at school, such as if he put his hand on the shoulder of boys he liked or accidentally touched them. Other boys were not made fun of in this way. He did not do any research or look on the internet to learn more. It was only after coming to Australia that he got some brief idea that there were others like him and that it was normal to lead a life that way.
I have a number of concerns with the applicant’s claims about his sexual orientation and his claimed experiences in Sri Lanka. Firstly, the applicant’s evidence about his interaction with a classmate who became aware of his sexuality and with whom he had sexual contact was unconvincing and inconsistent between the hearing and his written claims. In his written claims, the applicant states that one day he told this friend about the sexual assault he had suffered and his involvement in homosexuality. The friend did not take it as a major matter. The applicant states that his friend said that it did not happen in Sri Lanka but did in other countries, that it was not a big issue and that he was also interested in it.
At the hearing, when questioning the applicant about his experiences at school, I asked the applicant if there was anyone he was able to speak to about how he was feeling about his sexuality and he said no, he did not talk to anybody. I later asked if there was anybody in Sri Lanka he had told that he might be gay, or who knows that he is gay and he said no. I asked if there had every been anyone in Sri Lanka he could talk to about how he was feeling, and again he said no.
It was only when I asked the applicant directly if he had ever had a relationship with somebody his own age that he referred to this school friend, who he identified as being named [Friend A]. He said they had sexual contact but not a relationship. I questioned the applicant about how this friend became aware of the applicant’s sexuality and how the topic of sexuality had arisen in their conversations. The applicant ultimately said that he could not recall how the topic of homosexuality had first come up between himself and [Friend A], but [Friend A] had guessed about it. [Friend A] told the applicant that he himself was not like that but had heard it was normal. [Friend A] had said he wanted to show the applicant videos of same sex relations and their relationship slowly developed. The applicant’s evidence indicated that either [Friend A] did not initially know that the applicant was attracted to men, or might have guessed it. I asked the applicant if [Friend A] had known about the applicant’s relationship with [Mr A] and he said no. I asked if the applicant had ever told [Friend A] about that, and he said no.
The applicant’s evidence at the hearing that he did not discuss his earlier experience with [Mr A], which in the applicant’s evidence was described as a relationship, is directly contradictory to the written claims that indicate that the applicant’s disclosure of his assault and involvement with homosexuality was how [Friend A] came to know of the applicant’s sexual orientation. When I raised the difference between his evidence at the hearing and written claims, the applicant stated that he did not recall mentioning it in that way. This does not explain the inconsistency.
My second concern is with differences in the applicant’s evidence to the Department and to the Tribunal about when he and [Friend A] were discovered by others in the village and what occurred as a result. In his written clams, the applicant states that when he remained at home in school holidays while his family were in Colombo, he and [Friend A] engaged in homosexual activities ‘continuously for three days’. He says that these three days a person near the house observed them and on the fourth day that person informed the mosque committee. Members of the mosque committee entered the house, sent [Friend A] out and assaulted the applicant. He ran away and went to Colombo. The departmental officer questioned the applicant about these events at the protection visa interview. There, the applicant said that people from the mosque had attacked him after seeing him having sex. His having sex with this boy came to attention because, in a small village if an incident takes places continuously for three days, others will come to know. He said people noticed that the friend was coming to his house continuously for three days. He was asked when the mosque people approached him and said on the fourth day, having noticed the boy, they came to the house to attack him. The applicant escaped and travelled to Colombo.
At the hearing, the applicant similarly claimed that [Friend A] came to his home while his family was away in Colombo (adding that [Friend A] had brought sex videos to show the applicant), somebody came and noticed it and that caused the applicant problems in the mosque. However, when questioned about the problem with the mosque, the applicant presented a new version of events. He said the mosque committee had initially given him a warning. After that, [Friend A] continued visiting him and somebody from the mosque saw them, came to the house and he was beaten. When asked for more detail about the warning the applicant said it was taken to the committee, they came to meet him in front of the mosque and gave him a warning, telling him to stop the behaviour or it would be made public and he would be sent out of the community. He said he tried to avoid the behaviour, but after two days he invited [Friend A] to his home again. They were together a few times, somebody witnessed them, beat them both and broke the house. He went to Colombo. He said it was less than a week between the warning and when he was beaten.
There are obvious differences between the written claims and evidence to the Department and the claims at the hearing. The earlier evidence suggests that [Friend A] attended the applicant’s house for three consecutive days and on the fourth day they were intercepted and the applicant beaten. The applicant made no mention in his evidence to the Department that he was called to the mosque and given a warning, or that he later resumed his affair with [Friend A] after several days and it was only after this that he was again seen and beaten.
When I raised the discrepancy between the applicant’s earlier evidence about the three continuous days and being beaten on the fourth day, and that at the hearing about having first received a warning and [Friend A] then resuming to come to his home, the applicant said that maybe he had forgot to mention that. The evidence from the delegate’s interview was also put to the applicant in the s 424A letter. In his response the applicant stated that he had not given a clear explanation at the first interview because he had been scared and nervous at the time, but had told everything clearly at the hearing. I do not accept this explanation. This is not simply a case of the applicant providing additional detail or elaborating on his earlier claims; he has presented a different narrative. Despite his claimed fear and nervousness at the interview, the applicant was nonetheless able to provide a version of his account that was broadly consistent with his written claims. In any event, even if the applicant were scared and nervous at the interview as he claims, it does not explain the differences between the evidence at the hearing and the written claims. I am not satisfied that nervousness or being scared explains the differences in his evidence.

Another cause for doubt over the applicant’s claims about leaving his village after being attacked in 2013 arises from the fact that he nonetheless completed his [grade] exams. The applicant confirmed at the start of the hearing that he had undertaken his [grade exams] in 2013 at his high school which was two or three kilometres from his village. He said he had been ‘forced’ to move to Colombo after finishing school. However, the applicant’s evidence to the Department was that the reason he had remained behind in the village with his friend while his family went to Colombo was that he needed to study for his [grade] exams. He said at the interview that his family had wanted him to join them in Colombo but he refused, that he was preparing for his [grade exams] at that time, and did not go with his parents in order to study. He said that during this time his friend was coming to his home under the guise of studying. Both his written and oral evidence to the Department clearly indicate that at the time his friend was visiting him while his parents were away, he was still studying for his [grade exams].
When initially asked at the hearing about how he had been able to finish his schooling after being beaten and going to Colombo, the applicant claimed that these events had occurred in the period after the exam when he was waiting for results. I raised that he had previously said that the reason he had stayed at home was to study for his [grade exams]. The applicant reiterated that it had happened while he was waiting for his results. I repeated and further explained the inconsistency between this and his earlier evidence that he had been unable to go to Colombo because he was still studying for his [exams]. The applicant then shifted his evidence and said that when his parents had left his exams were almost over except for one, and that was why he stayed behind in the village. I asked how he had sat this one exam if he had to leave town. He then claimed that [Friend A] had been attending his house to study, they had finished the exam, and then got into the activity which led to trouble.
As put to the applicant, his evidence at the interview was that his parents had wanted him to join them in Colombo but he refused because he was studying for the [grade exams]. If it were the case that he was scheduled to sit an exam in that period, it is hard to see how he could ever have been expected to travel with his family to Colombo. When I raised this, the applicant reiterated that the only reason he did not go was due to the exams, and that he was only waiting for one subject at that time. The information from the delegate’s interview was also put to the applicant in the s 424A letter. In his response the applicant stated that he had not gone with his parents because he was preparing for an exam. He said his parents had told him he did not need to write the exam and only one subject was remaining. He told them he wanted to write the exam and did not go with them. This claim that his parents suggested he did not need to sit his remaining exam is a new explanation that was not given at the hearing. The explanation does not address the broader issue about the change in his evidence as to whether he was still preparing for exams, was waiting for results, or had one exam remaining.
The fact of the applicant having completed his [grade exams] at his own school near the village undermines the claim that he was attacked and chased from the village at a time when [Friend A] was at his house under the guise of studying. The applicant’s explanation as to the timing of these events in relation to his exams has been inconsistent and changed in response to my concerns.
A further concern arises over a discrepancy in the evidence as to whether or not the applicant made a complaint to police after the incident in which he was beaten. In his written claims, the applicant states that after he arrived in Colombo and told his parents what had happened, ‘we’ went to police to complain. He says police spoke disgracefully about them, and questioned the applicant disgracefully and vehemently. Police did not come forward to help them. At the hearing, I asked the applicant if he had ever tried to get help from the police. He said that he went and they treated him very lowly and badly. He said this was after the trouble with [Friend A] in the village. Asked where he had tried to approach police, he said it was in [Town 1]. He had earlier indicated in the hearing that this is a town about two or three kilometres from his home in the village, where he had attended school. He said this approach had been in 2013, and when asked how it had come about, he said that when the mosque committee had troubled them and said he could not live in the village, he went to police to complain against the committee.
I reminded the applicant that he had earlier said that he had left the village on the day of the attack and not gone back. He confirmed he had not gone back to the village. I queried how he had gone to the police and at that point he changed his evidence and said he had not gone, that the complaint had been made by his father about the threat. He said he had not gone to the police or seen the police at all. When I raised what was written in his statement about the police questioning him disgracefully, he claimed he had meant his family members. I put to the applicant that he had said at the interview that the police had scolded him. He claimed they had scolded him to his father, not in person, and then his dad was angry at him so had repeated the same thing and also scolded the applicant.
The evidence from the interview was put to the applicant in the s 424A letter. In his response, the applicant reiterated that he had not gone to the police station but that his father had scolded him by telling him what had happened and how the police had slandered him. He says this is what he had said and he thinks this was a confusion caused by mistranslation or misunderstanding. Even if that were the case, it does not explain why he also stated in the written claims, and initially at the hearing, that he had gone to the police. It is difficult to accept that this part of his evidence on each occasion was impacted by a mistranslation or misunderstanding. The explanation does not address my concerns over the changing evidence.
I have further doubt over the applicant’s claim about his relationship with a monk in Colombo and being shot at. At the hearing, I asked the applicant about his relationship with the monk and he gave an explanation of how that relationship had started, consistent with his written claims. The applicant said the relationship developed within two weeks of him starting work at the temple. The monk called the applicant to his room and asked the applicant to give him a massage. This would happen often after then. The applicant said he was not attracted to the monk and did not really want to engage in this conduct, but felt an obligation and did not mind because the monk had given him a job, and because he did not want to stay at home at that time. The monk was a lot older than the applicant, perhaps around 60. However, despite claiming that this had been ongoing for around six months, he said he did not know the monk’s name. I asked what he knew about the monk, and he said he knew he was in charge of the temple. Asked what they talked about, the applicant said the usual things, such as what did he eat, study, where he was going. However he said that communication was not good because the monk did not know Tamil or English and the applicant did not know Sinhala.
The applicant’s claim was that one night when going to dinner with the monk, a car drove at them and fired shots. The applicant told his father about this the following day and he then applied for a student visa for the applicant. Asked at the hearing about the timing of being shot at, the applicant initially said it was in 2013 and that he could not remember the exact date. He then changed his evidence and said it was 2017 or the end of 2016. He said he had left Sri Lanka around three months after this incident. I put to him that at the protection visa interview he had said this occurred in 2015. He said he was not sure, that it was that period of time. I note that the interview with the Department was held in December 2017. I find it very difficult to believe that the applicant would have said that this shooting took place in 2015 if in fact it had only occurred around a year prior to the interview.
The applicant’s evidence at the interview about the timing of the shooting was put to the applicant in the s 424A letter. In response, the applicant stated that he had mistakenly said 2015 because he was scared during the interview and not prepared for anything. He said he thinks he told something wrong due to anxiety. Considered relative to the timing of the December 2017 interview, there is a considerable discrepancy between saying that an event occurred some time in 2015, over a year prior to the applicant’s departure from Sri Lanka and at least two years prior to the interview, and in late 2016 or early 2017, three months prior to his departure and only around a year prior to the protection visa interview. An error in dates would not of itself be significant, but relative to the timing of the interview it adds to my concern that the applicant was not describing events he had genuinely experienced.
The applicant claimed that if he were to return to Sri Lanka and people were to come to know he had been involved in this matter with the monk, they would threaten him. I asked the applicant what was happening in the three month period between this shooting and him coming to Australia. He initially said that he was just coming to classes and going home, and was researching about how to come to Australia. When I asked why he would now be at risk because of the incident with the monk, some seven years later, considering no one had tried to harm him in that period before he left, he made a new claim that in those three months he was always almost in hiding, always staying at home or going out with someone for safety and that they had received many threatening letters. When I asked why he was only mentioning these letters for the first time now, he claimed that he had also mentioned them at the interview with the delegate.
The s 424A letter put to the applicant that he had not mentioned receiving threatening letters in the months prior to leaving Sri Lanka at his interview with the delegate. In response, the applicant stated he had thought he had told about the letters, and did not answer correctly at the interview due to fear and anxiety. He had said everything at the hearing because he wanted to tell everything. He is not telling lies and has not mentioned incidents that did not happen. He wants a chance to live without fear.
I also take into account the context of the timing of the events in Sri Lanka. The applicant’s evidence was that he completed schooling in 2013 in [Town 1], then one or two months later commenced higher studies in [subject] in Colombo. He said that he began preparing to come to Australia in mid 2016 and came to Australia on a student visa in 2017, as soon as he finished his qualification. This timing is suggestive of a planned progression of study rather than leaving first his town and then the country because of particular incidents of harm as he claims. When this was raised at the hearing, the applicant said that his intention had only been to come to Australia for safety and the timing of his having finished his study was a coincidence.
At the end of the hearing, the applicant provided a further explanation for the discrepancies in his evidence. He said that at the time he applied for the visa he was immature and a scared kid. No one had sat and talked with him about what he went through. He was scared and unprepared at the protection visa interview.
The applicant has suggested that he was suffering fear and nervousness at his interview, was immature and felt more able to discuss matters at the hearing than at the earlier interview, and that this is the reason for discrepancies in his evidence. I have taken into account that the events the applicant was describing occurred a number of years ago and that his recollection may have been impacted by the passage of time, or by trauma arising from his claimed experiences. However, the applicant asserts that the evidence at the hearing is the correct version, rather than the earlier evidence which is more proximate to the events in question. His evidence at the interview, which the applicant asserts is less reliable, was generally consistent with his written claims. It is the evidence at the hearing that is different. Even within the hearing, some of the evidence was contradictory and shifting. I do not find the applicant’s explanations for the concerns in his evidence persuasive and am not satisfied that they arise because of fear, nervousness, trauma or any of the other explanations given by the applicant. Taking my concerns as a whole, I have reached the conclusion that the applicant’s evidence about his experiences in Sri Lanka is not credible.
Although I do not accept the applicant’s claimed experiences in Sri Lanka, I have considered whether the applicant’s claim to be gay may nonetheless be credible. However, there is minimal evidence of his claimed sexuality independent of those claimed experiences. The applicant has been in Australia since early 2017. On the applicant’s evidence at the hearing, he has lived an isolated life here. He has steady employment and has been in the same labouring job for the past seven years. He lives with housemates with whom he does not spend much time. He has not had any relationships with men (or women) and does not have friends. In response to my questions the applicant said that he thinks of himself as gay. He wants to pursue relationships with men, but said he has not done so because he felt like being alone, and wants to continue being alone. He said if he gets the right opportunity he is willing to pursue a relationship in Australia.
I asked the applicant if he had had any interaction with the gay community in Sydney, and he said he has been to Mardi Gras twice, in 2022 and 2023. He went because he had wanted to self-realise, to know about himself and to see what it means. Asked about his experience there, he said it was totally different to Sri Lanka, seemed to be a very rich culture, but he did not know how to mingle. He said he felt good being there. I asked if he had taken photographs and he said he had, but they had been on a phone which he had lost and he did not have them anymore. When asked why he had not gone to Mardi Gras in 2024, he said there was no particular reason. The applicant said he had not told anyone about going to Mardi Gras, that he does not have close friends. I asked if he had any other opportunity to interact with the gay community in Sydney apart from Mardi Gras, and he said no. I asked if he had expressed his interests online, and again he said no, because he was scared. The applicant said he had seen gay people in Australia at Mardi Gras but had not interacted with them. He has not seen gay people outside of Mardi Gras.
From his evidence at the hearing, the applicant appeared to have been under the impression that homosexuality had not been legal in Australia when he arrived (this seems to have been a misunderstanding over the legalisation of same sex marriage). He said because of this he had not pursued it and had isolated himself. As I put to him, it is hard to understand why he had sought protection in Australia on the basis that he is gay if he had thought it was illegal, and why he had not done any research into the situation. The applicant stated that he did not come to Australia to practice to be gay, but to protect his life.
The applicant is educated and came to Australia on a student visa, and I find the applicant’s lack of research into the situation for gay men concerning. Even accepting he may have genuinely misunderstood the law, on his evidence he did not do anything differently after the law changed, because he did not get an interest and thought it was better to live alone. I also put to the applicant that even if he had not come here ‘to be gay’, on his claims he had a voluntary sexual relationship with a friend in Sri Lanka, and it was hard to understand why he had not also explored his sexuality in Australia where he had the freedom to do so. The applicant referred to the trouble he experienced. He also referred to the family pressure he faced, that he had told his family he was no longer inclined towards men. He stated there were no opportunities for him to express himself in Australia, that he was not happy and had a lonely life, it was difficult for him, and his only purpose to be here was to be safe. He said he is scared because of everything that had happened. He referred a number of times to being scared because of the events in Sri Lanka.
While I take into account the applicant’s evidence about cultural expectations and not wanting to upset his family, much of his explanation for his conduct in Australia related to fear because of his past experiences in Sri Lanka. He emphasised that he had come to Australia to protect his life, not ‘to be gay’. I have not accepted his claimed past experiences in Sri Lanka, and his reference to these undermines his explanation as to why he has been afraid or reluctant to engage with the gay community or gay men in Australia. Ultimately, apart from attending Mardi Gras twice (which, even if true, does not of itself evidence claimed homosexuality), the applicant claims no exploration or manifestation of his sexual orientation in Australia. The only other evidence he has presented of his sexual orientation is that about his claimed experiences in Sri Lanka, which I have found not credible.
Overall, I do not consider the applicant’s evidence about his sexual orientation persuasive and I do not accept that the applicant does in fact identify as a gay man, has or would pursue a relationship or sexual activity with men, or that he would be perceived as gay in Sri Lanka for any reason.
Although not raised by the applicant, the delegate considered whether there was a real chance of harm to the applicant on account of his religion. At the hearing, I asked the applicant whether there was any other basis on which he feared harm in Sri Lanka, apart from his claims relating to his sexual orientation. The applicant was also given the opportunity to present any additional claims or information at the end of the hearing. The applicant did not raise any fear of harm relating to his religion to the Tribunal, apart from in relation to claimed treatment by the mosque committee because of his sexual orientation which I have not accepted.
Considering the evidence as a whole, I find the applicant does not have a real chance of being seriously harmed in Sri Lanka in the reasonably foreseeable future, and that there is not a real risk of him suffering significant harm.
I find that the applicant does not have a well-founded fear of persecution within the meaning of s 5J and is not a refugee within the meaning of s 5H.
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).
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).
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.
Patricia Tyson
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.
…

[2024] AATA 4030

24 September 2024

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