1902559 (Refugee)

1902559 (Refugee) [2023] AATA 2005 (18 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dinesh Weerakkody (MARN: 0742843)
CASE NUMBER:  1902559
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Genevieve Hamilton
DATE:18 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 April 2023 at 1:32pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – threats from wife’s family because of breakdown of marriage – arrested, detained and threatened for aiding and abetting LTTE – lawful departure on own passport while on bail under reporting conditions –implausible that Sinhalese would be imputed with supporting LTTE – implausible that ex-wife’s family would continue threats and actions after divorce and applicant’s departure – applicant’s family’s official complaints repetitive and contrived – doubtful authenticity of documentary evidence – credible adverse allegations – delay in applying for protection and period as unlawful non-citizen – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65, 91R, 91S, 424A, 424AA
Migration Regulations 1994 (Cth), 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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 November 2013 and the delegate refused to grant the visa on 23 March 2015. On 25 May 2017 the Tribunal (differently constituted) affirmed the Delegate’s decision (AAT reference number 1505391).
On 17 January 2019 the Federal Circuit Court of Australia ordered, by consent, that a writ of certiorari issue quashing the Tribunal’s decision and a writ of mandamus issue requiring it to determine the application for review of the decision of the delegate according to law.
The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments in the review on remittal.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
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, the applicant 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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Refugee criterion
Section 36(2)(a) (as applicable to the time when the application was lodged) 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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
In his protection visa application the applicant said he was born in Colombo, Sri Lanka on [Date]. He speaks, reads and writes Sinhalese, is ethnically Sinhalese and is a Buddhist. He is a Sri Lankan citizen. He came to Australia as a student [in] September 2007, travelling on a Sinhalese passport.
The applicant claimed that [in] June 2009 he was arrested by a Terrorism investigation officer based on a complaint made by [Inspector A] of aiding and abetting the LTTE. He was questioned for two days.He has never been involved with the LTTE. He and his family were getting continuous threats from his wife’s family and faced the possibility of arrest by the authorities. His parents are still threatened by unknown people asking about him and they are still chasing him. They were supported by government authorities.
In his statement of claims the applicant said (some dates have been corrected so as to reconcile them with dates provided on related documents described further below):
After completing my studies in Sri Lanka I decided to carry on my further studies in Australia.
Therefore I flew to Australia to follow Diploma in [Subject] Course [in] July 2007.
I had a relationship with [Ms A] who was [an Occupation 1] and was
working at [Employer]. We continued our relationship over 4 years. Finally our
marriage took place [in] December 2008 with the blessings of our parents, relatives and friends.
After a few weeks I returned to Australia to continue my studies [in] January 2009. We both
communicated each other by telephone and Skype while I was in Australia. After few months I
noticed she was trying to ignore me. Gradually she stopped talking with me and I felt that she
was in love with someone else. I tried to resolve this problem over the telephone and
sometimes we had a few arguments between each other. All her actions and reactions
indicated me that she really wanted to go away from me. This situation turned into a very serious problem and badly affected to my studies. I was depressed thinking about her and could not make my mind up for studies. I was so helpless and could not concentrate anything. Therefore I decided to go back to Sri Lanka to resolve this problem and flew to Sri Lanka [in] May 2009.
I went to see my wife with my parents. Her parents and her brother in law were there. Her father is a businessman who has strong connections with some of the top government bodies and some of the underworld figures in Sri Lanka as he carried out unlawful activities on behalf of government politicians. Her brother in law is a [Rank] in the Sri Lankan army and he is one of the head leaders of the [Unit].
Her father got involved in our conversation while I was talking with [Ms A] and argued with
me and the conversation directed in a different direction and her brother in law entered into the scene. Then it was worst and was unfavorable to me. This situation was getting worst and
worst and my parents tried to calm them down. Unfortunately her father and brother in law
verbally and physically attacked me and my parents. They made a life threatened to us. I and
my parents wanted to find an amicable solution for this problem but we had to take our steps
back to home with bare hand without any solution.
After the above mentioned situation we were constantly threatened by [Ms A]'s side and
unknown people. Four unknown people with firearms who were in army uniform trespassed
to my house [Day 1] July (sic: June) 2009 at about 7.30 pm; I and my parents were physically and verbally attacked and threatened to kill by them. They destroyed our furniture and damaged to the property.
We lodged a complaint in relation to the above incident in [a] Police Station on [Day 2] July 2013 (sic: June 2009). We sought the protection from them unfortunately did not carry out any investigation regarding this incident. We were so helpless. Since then we were verbally and physically attacked and threatened by unknown people several times. I enclose copies of complaint extract from the Information Book of [the] Police Station for your information.
On [Day 3] June 2009 I was arrested by a Terrorism Investigation officer according to the complaint made by [sub Inspector A] of Terrorism Investigation Department aiding and abetting to LTTE organization. I was questioned by the officer of the Terrorism Investigation Department for two days in relation to the LTTE terrorist group. I wondered and shocked why they questioned me about the LTTE terrorist group as I had no knowledge and had no any
involvement with the LTTE terrorist group. There was no any evidence with them for those
allegations.
However I produced to the Magistrate court with the allegation of being involved with the LTTE terrorist group. Even though they were false allegations I was jailed for 14 days. That was my darkest days of my life. I knew my wife's father and brother in law were behind all those incidents. I enclose copies of investigation reports for your perusal.
I was released on bail [in] July 2009. Since then we were inundated by numerous life
threatening phone calls. I had a very fearful situation in Sri Lanka. It made me mental
depression.
As a last resort I decided to return to Australia with hopes to continue my studies without any
delay. My wife has lodged the divorce case while I am in Australia and the case was decided Exparte, on the basis that the defendant's constructive malicious desertion. I enclose a copy of the court order for your information.
After arriving to Australia I met the owner of the [Agency] to extend my student visa as it is to expire in November 2009 and paid him in the sum of $1500.00.
Unfortunately I did not hear from the [Agency] until my visa expired. I tried to contact [Agency] numerous times by phone and in person. All their telephone numbers were disconnected and they had moved to somewhere. Then I contacted the school management. I was advised by them that the college was going to close permanently. After a couple of months my college closed permanently. Since then I had no idea what I had to do next. I had no good situation to return to Sri Lanka. Therefore I had to stay in Australia unlawfully.
I honestly believed that the horrible situation that I had to face in Sri Lank would be disappeared after leaving Sri Lanka. Unfortunately my parents are still threatened by the unknown people asking me and still they are chasing me. I know I cannot escape from them ever. Therefore I decided to apply for the protection visa.
The applicant submitted his marriage certificate dated [Dec] 2008 to [Ms A], and wedding photos.
He submitted his Complaint dated [June] 2009 to the [police], regarding trespassing and threatening. They were home watching TV heard someone knock at the front door, his mother opened the door. Four persons asked about the applicant. He approached them and they started to hammer him with rifles and said “we came to kill you”. His parents tried to intervene and were similarly threatened. They said “do you want to destroy the future of your wife who is relative sister of our boss”. Then they ran away in their Jeep. Complainant has a clear suspicion that the gang is directed by the relative brother of his wife who is an army [Rank], who has made death threats against him several times over the phone,
A document purporting to be an investigation report and journal entries for case [Number], certified and sealed by the Registrar of the Colombo Magistrates Court. Witnesses to the taking into custody of the applicant are named, and a list of evidence specified. The document purports to outline the history of the case as follows up to [August] 2009: the applicant was arrested [in] June 2009, his lawyer asked for bail as the allegations were false, remand was extended, he was released on bail (with cash and surety totalling 600K Rs) on 8 July 2009 on attorney’s request, 22 July he failed to report, 5 August arrest warrant is requested.
The applicant submitted a document purporting to be arrest warrant dated [August] 2009, in relation to Case [number] in the Magistrates Court of Colombo, based on a complaint from the Chief Inspector of [the] Police Station, signed by the Registrar of the Court, and the charge particulars are “aiding and abetting the LTTE terrorist organisation”.
The applicant submitted a further police complaint dated [August] 2009 by the applicant’s mother concerning trespass and harassing, made at [the] police station. She states that they were at home watching TV and heard a knock and the door and people announcing they were from the police. 5 people clad in uniforms similar to army uniforms entered the house by force and asked about the applicant. They assaulted her husband and younger son. They threatened to kill them and burn the house if they fail to produce the applicant, then left in their jeep. They had rifles and pistols. Her husband said they are from the army and the jeep belongs to the army. The Complainant has a suspicion about the father in law of her son and his relative son who is a [Rank] attached to the army, who has made death threats to her son several times.
The applicant submitted a copy of his [November] 2009 (confirmed [Sep] 2010) divorce on the request of the wife, with non appearance by the applicant, based on her uncontradicted evidence on the basis of his constructive malicious desertion.
The applicant submitted further documents as follows:
·Complaint by the applicant’s father dated [December] 2009, to [the] police station concerning property damage and death threatening. While watching the TV he heard someone knocking at the door. They threatened to break in. With the door open six armed persons entered the house by force asking where was the applicant. “We asked you to produce [the applicant] several times but you failed to do so, we will kill [the applicant] as well as your whole family if you fail to comply with our order. They searched the house, threatened the other son, and kicked him. They destroyed furniture and windows. Finally they left the house by the jeep they came in, saying “you don’t know who is the father in law of our boss he has very close connection with this government and he can do anything”. Complainant has a clear suspicion that the gang is directed by the father in law of the applicant and his relative son who is a [Rank] attached to the Army.
·Complaint by the applicant’s father dated [November] 2010, [the] police station, regarding harassing and death threatening. We were all sleeping and he heard a knocking and demand to open the door by people claiming to be the police with a search warrant. The applicant asked them to come back tomorrow. They threatened to break down the door so he let them in, four people clad in uniform similar to the army uniform and they all had weapons. They asked where the applicant was. He said he didn’t know. They said “do not try to mislead us why your son did not appear before the court for the court case filed by your daughter in law. Our boss want to kill your son that is why he persuaded her to divorce him. Don’t you know [the father in law] is a powerful character of the government and he can do anything? We will find [the applicant] any how and kill him”. They damaged the house with their weapons and hit the occupants with rifle butts. Again they could not trace the registration number of the Jeep. The ex-wife’s father and relative brother who is a [Rank] in the army want to kill the applicant and that is why the gangs are trying to find him.
·A letter from the applicant’s father to the Inspector General of Police in Colombo dated [November] 2011 regarding complaints made to [the] police on 4 occasions ([June] 2009, [August] 2009, [December] 2009 and 22 [November]) concerning trespass and damage to house and properties by unidentified persons demanding their son who is not at home. He complains that the no action has been taken. He suspects his daughter in law and her brother because she divorced his son without his consent on the persuasion of that brother who is a [Rank] in the SLA. The gang are coming in jeeps similar to those used by the Army and some members wearing clothes similar to army uniforms and carrying T56 rifles and revolvers and clubs and demanding his son, whom they want to assassinate.
·A further complaint by the applicant’s father to [the] police dated [April] 2013 regarding obstruction and threatening. He was on the way to a hospital with his younger son when a jeep obstructed his car and four people got out and aimed their guns at them and dragged them out of the car and assaulted them asking where the applicant was, and said “we are ordered to kill [the applicant] who has destroyed the future of our boss’s sister in law” referring to the applicant’s ex-wife. The whole family will be assassinated if they fail to produce him. They were clad in uniforms similar to army uniforms. The complainant has a clear suspicion that the gang are directed by the father in law and his relative’s son who is a [Rank] in the army.

The applicant submitted a legal opinion by his attorney in Colombo dated 10 May 2013 stating that he has been consulted by the applicant’s father regarding the baseless charges against the applicant. He also consulted the applicant by phone from Australia who told him about the divorce and the threats from the brother in law who is a [Rank] attached to the army on the persuasion of the father in law. The army arrested him and handed him over to the TID. He believes that this was arranged by the brother in law. The divorce went through ex-parte. The lawyer has gone through the Investigation report filed by the TID in the case. The applicant is suspected of giving vital information to a hardcore LTTE member who had been taken into custody. He had not been given a copy of the statement made by the LTTE member. The applicant had been charged with aiding and abetting terrorism and suppression of information about terrorism. The lawyer cited various provisions of the criminal code he claimed affected the applicant and the open warrant issued against him, and the failure of the authorities to take action regarding the police complaints made by his family.
The applicant submitted an undated letter from the same lawyer stating that he had received an anonymous call threatening him with death if he appears for the applicant, and a further undated letter in similar terms states that the applicant’s documents are all genuine and that on his instruction his junior attorney was able to obtain bail for the applicant after persuading the Magistrate of Colombo with financial assistance supplied by his father which is easy to do because of the corrupt legal system in Sri Lanka.
The applicant submitted articles about white van abductions in Sri Lanka, of which the Government was accused.
The applicant submitted a complaint by the applicant’s father to [the] police dated [January] 2015 regarding damage to vehicle and threatening. He was driving and a white van took obstructed his path. Four persons came out and signalled to him to open his door. He didn’t because he was frightened. The pointed a pistol at him so he opened the door. They asked “aren’t you [the applicant’s] father, where is he, he is a traitor if we catch him we will kill him and you will also be killed”. They destroyed his windscreen and said “tell your son we will kill him any how” and left.
The applicant was interviewed by the Delegate on 2 February 2015. The Delegate refused the protection visa, the decision was affirmed by the Tribunal (differently constituted), and that decision was remitted by the Court as previously discussed, by the consent on the basis of an error in the Member’s application of s 424AA.
In support of the review on remittal, the applicant submitted country information about the use of the PTA to arrest student protesters, the arrest of a Sri Lankan judge on corruption allegations, and the International Crisis Group report on Sri Lanka’s politicised jury published in 2009. He also submitted an AFP police clearance and a credit report.
The hearing
The applicant said his parents still live at the same address in suburban Colombo, while his brother lives in another part of Colombo because his parents do not want him at risk. The applicant completed his A levels in and then worked for a [company] as [an Occupation 2] and helped his father in [Work sector]. He came to Australia to study [Subject]. He had a two year visa and studied for one and a half years. He got married, and when he went back to Sri Lanka to see his wife there was trouble and he couldn’t keep going with his studies.
The applicant and his ex-wife met at work and then she went to work for [Employer]. They married with the consent and agreement of both families, in December 2008, half way through his student visa. He came back to Australia in January 2009 and in May that year went to Sri Lanka. He thought his wife was cheating. They had made no plans for her to join him in Australia because she loved her job. The applicant wanted her to come to Australia once he finished her studies. They got into an argument when he was there, then her father joined in the argument. The applicant was visiting his wife and her family, with his parents. The two fathers started throwing punches at each other.
The Tribunal asked the applicant what the fight was about. The applicant said his wife had been communicating less and less, so he got a bad feeling about the marriage. When the fathers were punching at each other the applicant had to defend his father. The neighbours also intervened and he and his family managed to extricate themselves. This all happened the day he arrived in Sri Lanka.
Three days later his wife’s brother in law (i.e. his wife’s sister’s husband), who was also involved in the fight, and is a member of the [Army unit], called the applicant and accused him of being the one who was cheating. As per his written claims, four people came to the house at about 7.30 and threatened the applicant’s relatives with guns, and threatened to return.
The Tribunal asked the applicant who these people were. The applicant said he thought they were a group organised by the brother-in-law. Asked why he thought that, the applicant said his wife’s father is a well known thug in the area and they do things like that.
On [Day 3] two plain clothed and two uniformed men came and arrested him. He later found that they were from the Terrorism Investigation Department. They questioned him about the LTTE, what information he had given to the LTTE and his connections with them. He was kept in detention for two days. They took him to Court and presented documents and SIM cards. They asked the court to keep him for a further 14 days. The applicant’s father complained to various authorities including the Human Rights Commission. [In] July there was a court date, and the applicant was bailed with a reporting condition every Saturday. His father managed to make sure he still had a passport and that it was not confiscated. Asked how he did this, the applicant said it was probably with the help of lawyers and bribery. The applicant returned to Australia.
His lawyer in Sri Lanka advised him not to come back, and to apply for protection. His agent later told him he had applied for a protection visa. A number of times “they” again came to his family home and asked about him and damaged property, and assaulted and followed his family. The Tribunal asked the applicant why they did this over and over again. The applicant said it was because they wanted to know where he was, and because he had insulted his wife somehow. She lodged a divorce application. The Tribunal noted that the applicant’s ex wife had been granted a divorce application, and asked why therefore her family would keep agitating against him year after year. The applicant said it was because he hit her father.
The Tribunal observed that it might not be considered plausible that they would sustain this same course of action all they way up to 2015, considering they would know by then that the applicant was not in Sri Lanka. There was no escalation of the hostile activity, or retreat, over that time which one would expect in a genuine dispute; it was approximately the same scenario in each police complaint. The Tribunal said that it may find that the police complaints were contrived and that the events complained of therein did not occur. The applicant maintained that his opponents were after him and they were trying to wear him down. Six years was not such a long time for personal vengeance.
The Tribunal asked whether, over the years, any one at all had been identified among the attackers? The applicant said even if his family was able to identify anyone the police would not help because his ex father in law is a boss. The Tribunal asked the applicant on what basis he believed that his ex father in law was a person of such power and influence. The applicant did not respond directly with information that answered this question, but said that the Tribunal could check that the police reports and court documents were genuine. The Tribunal said that even if the documents were genuine, their contents might not be.
The Tribunal asked the applicant how he got the Investigation Report and the warrant, considering that they were not addressed to him. The applicant said they were given to his lawyer, presumably at his request. The Tribunal asked the applicant what he was charged with. The applicant said he did not know. He said the allegations were not true. The Tribunal, noting that he was Sinhalese and therefore clearly not a supporter of the LTTE, asked the applicant why the Sri Lankan police would act on an obviously untrue allegation. The applicant said that is how the police work, when they are influenced by people connected to politicians; they don’t even need an allegation. The Tribunal reiterated that this connection had not been established.
The Tribunal put to the applicant that it was unlikely he would be bailed and allowed to keep his passport if he was accused of helping the LTTE. The applicant said this was not always the case (referring to protesters who had been arrested). He said the Court would have realised it was very unlikely he was part of the LTTE. The Tribunal asked the applicant whether he had a receipt for the bail amounts. The applicant said he might have lost it.
The Tribunal noted that the applicant did not apply for a protection visa until 2013. The applicant said he thought he couldn‘t lodge any visa application when he was unlawful. He also said that his previous agent was supposed to lodge the protection application after he got back from Sri Lanka. The Tribunal put to the applicant that the existence of protection visas was fairly common knowledge and the applicant could easily have enquired and been advised about whether he could lodge when unlawful.
The Tribunal asked the applicant what risk faced him now. The applicant said he would be arrested and would not be treated lawfully. His brother was still living away from home for his safety. The Tribunal said it might not accept that this was the reason his brother was living away from home.
The Tribunal asked the applicant who the attorney was who got him out on bail. The applicant said he did not know, his father dealt with the attorney. The Tribunal referred to the attorney’s letters which on the one hand suggest that he was providing an opinion, and later that he did instruct in the court proceeding. This was inconsistent. The applicant was unable to comment on this as he did not know or understand what was going on with the attorney. The Tribunal put to the applicant that it was difficult to see how the attorney would be threatened as claimed, if he wasn’t acting for him.
The Tribunal asked the applicant if anything had happened since 2015. The applicant said he and his family are just avoiding situations that put them at risk. The situation was even worse in Sri Lanka now, it was economically and politically unstable. The Tribunal put to the applicant that while this may be so, it did not necessarily present a risk of serious or significant harm to himself. The applicant said the police can take people away or harm them, as happened to the protesters. They would make up such an excuse again.
The Tribunal put to the applicant that DFAT reported that document fraud was common in Sri Lanka, and that the examiners had not been able to establish the authenticity of the documents they saw. The Tribunal also put to the applicant that there were allegations that he had made up his claims and that his documents were not genuine. The applicant said the documents were not fraudulent, and that the Tribunal should get the original documents checked again. People making allegations against him want him sent back to Sri Lanka. He already had a good pathway to migration before these problems arose.
The applicant said there were no other issues for him in Sri Lanka. He said his uncertain visa status had impeded the plans of himself and his second wife to start a family, and that he could not take her to Sri Lanka, and that he was depressed by this situation.
On 15 March 2023 the Tribunal wrote to the applicant in accordance with s 424A inviting him to comment on adverse information. The letter read in part:
The particulars of the information are:
. The conclusions provided by the Department’s Documentation Examination
Unit on 2 August 2016, regarding copies of five documents: an arrest warrant,
an investigative report, and three extracts from the information book at police
station. It was the opinion of the examiner that the documents submitted had
sufficient inconsistencies to create reasonable doubt as to the authenticity of
the copies and the original documents.
This information is relevant to the review because it may cause the Tribunal to doubt
the authenticity of those documents.
The particulars of the information also are:
.an allegation dated 29 January 2015 that you that you do not require protection and that you were looking to obtain false documents to support your application.
. a further allegation dated 20 February 2017 stating that your refugee claims
are fabricated and that your documents are fake.
This information is relevant to the review because it raises doubts about the genuineness of your protection claims and supporting documents.
If we rely on this information in making our decision, we may find that you do not have a well-founded fear of persecution, which would be a reason for affirming the Delegate’s decision.
The applicant replied, in summary, that his documents were genuine and that the allegations against him were false, and referred to country information that he had submitted.
FINDINGS AND REASONS
Based on the information in her protection visa application, the Tribunal finds that the applicant’s country of nationality is Sri Lanka, and that he is ethnically Sinhalese.
The applicant made claims concerning a family dispute that escalated into violence and threats. Part of the claim was that he was also falsely imputed with an LTTE association. To this extent his claims may be considered under the refugee criterion for a protection visa. Based on his own claims the Tribunal finds that the applicant never had any actual involvement with the LTTE.
The Tribunal accepts that the applicant and his family had a verbal and physical row with his ex wife’s family and she subsequently divorced him. She evidently had no difficulty doing so despite his absence. It was not claimed, and there is no evidence, that anyone was seriously harmed during this argument.
The Tribunal is not satisfied that the applicant’s former father in law and his ex wife’s brother in law are persons of influence with government figures and the underworld. The fact that the brother in law was a ranking [member of] the army does not take this claim very far. And it was not supported by any other detail about the identities of these connections.
Some of the applicant’s documents were examined by a document examiner during his first review application. The Tribunal gives no weight to the examination report as it largely focused on issues to do with copied documents that were of no assistance as he had provided originals to the Tribunal at the first review.
There were allegations that the applicant was preparing fraudulent documents to support his application and did not fear harm in Sri Lanka. These allegations also included information about his financial dealings that the Tribunal does not consider relevant. However, regarding his protection case the allegations were credible and came from someone who was aware of his plans regarding documentation. The Tribunal gives these allegations weight assessing the applicant’s evidence.
DFAT’s Country Report states as follows: “Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual's financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports several years ago of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports. DFAT assesses that document fraud is common in Sri Lanka…”. The Tribunal gives weight to this information in assessing the applicant’s evidence.
The Tribunal does not accept that the applicant or his family were threatened, assaulted, trespassed upon, obstructed on the street or experienced property damage as claimed in multiple police reports.
Firstly there was no realistic basis for the extent and duration of the claimed vendetta against him and his family. Once his ex wife obtained a divorce, while resentment undoubtedly could have lingered, the main source of it was removed. There was nothing to be gained by the sustained course of action that allegedly followed.
Secondly, the evidence submitted in support of the threats to the applicant and his family, i.e. a series of police complaints and letters to the police up to January 2015 (right before his protection interview with the delegate), was suspect. The police complaints are strangely repetitive in content. It seemed that the family was subjected to very similar interferences in largely similar settings by people who stated things that were unnatural embellishments in the context (e.g. about how powerful the family was, and about the applicant not assisting with the divorce). The dynamic of this reported campaign against the family also was static in a way that lacked verisimilitude. There was a pattern of linguistic formulations in the reports which suggest that the content of each document has been partly copied from another with limited variation.
The Tribunal finds that the applicant has obtained the police reports of the complaints from cooperative or credulous police officers. The letter to the police Inspector General has been constructed to support the narrative of unaddressed complaints. The contents of the reports are not true.
Thirdly, despite these repeated incidents involving uniformed service men associated with his ex wife’s family, the applicant was unable to even speculative as to their identities.
The Tribunal does not accept that the applicant was imputed with an LTTE opinion, detained, questioned and charged, and that a warrant has issued. This claim inherently lacked credibility. DFAT advised on several occasions during the civil war that it was implausible that any Sinhalese would sympathise with the LTTE (see CX32168 of 13 October 1998, CX22852 of 15 May 1997, CX21909 of 17 March 1997 and CX12970 of 15 December 1995). It therefore does not make sense that the security authorities would attribute LTTE support to a Sinhalese.
The applicant did not persuasively address this problem. In the end he appeared to rely on the idea that the police and the Court were complicit in what was an obvious stitch up, at the direction of his ex wife’s family. This strained credibility to an extreme degree, given that the scheme depended on the mutual connivance of a range of senior judicial and police officers.
And again, the evidence submitted by the applicant was problematic in several respects. Country information sourced from DFAT and the UK cited in the Delegate’s decision refers to the ease of obtaining forged arrest warrants and court seals (UKHOR86 31 October 2006, DFAT 7 August 2000CDX43698), and that a warrant would not normally be issued on the complaint of a local police inspector (the complainant would be the State of Sri Lanka, in this case the complainant was named as the Chief Inspector of [a] police station), and that warrants are not given to the accused, they are filed and issued to the police (UK High Commission letter dated 14 September 2010).

The information sourced by the Delegate from the International Crisis Group report June 2009 on Sri Lanka’s courts said that persons accused under the PTA could not be bailed by a single judge, only by the Court of Appeal in exceptional circumstances. Moreover, in this case there is no receipt for the cash bail payment or any evidence that that the surety was pursued when the applicant failed to report. It was claimed that his father complained to the Human Rights Commission but there is also no evidence of this.
The Tribunal notes the warrant does not refer to any breach of the specific provisions of the criminal law or terrorism legislation, which is technically unusual. Country information cited by the Delegate states that in issuing a warrant the court normally specifies the section or type of law under which the person is required to appear.
The Investigation report is an internal document. The applicant’s contention that his lawyer was able to get this, and the warrant, was unsupported by any detail as to how this was achieved.
The Tribunal considered the applicant’s attorney’s letters unhelpful and self-serving. It was not sufficiently clear what direct role he had in the events claimed by the applicant. His contention that bribery of the Magistrate was behind the case against the applicant was vague and unsupported by any detail, for such an extreme claim.
The applicant pressed the Tribunal (as currently constituted) to have his original documents examined again. The Tribunal formed the view that this would serve no purpose. The police reports are found to be fraudulent because of their contents, not because the documents themselves are not originals coming from a police station. As for the warrant and the Investigation Report, the Tribunal is satisfied that, however produced, their contents are not true.
The Tribunal’s finding in relation to the court case is reinforced by the fact that he was able to retain his passport and the ease with which he was able to leave Sri Lanka legally through the airport. This indicates that he was of no adverse interest to the authorities. Again, there were suggestions that this was achieved through bribery, but they were vague and lacking in detail.
The Tribunal’s findings are also reinforced by the fact that the applicant did not make a protection application until after he had been living in Australia unlawfully for several years. This is a relevant consideration in considering the genuineness of his claimed fear of harm in Sri Lanka. The applicant provided evidence that he had paid money to an agent to lodge an application for him closer to the time he returned to Australia. But he gave inconsistent evidence as to the nature of the visa to be applied for, on the one hand saying that it was for a student visa and on the other stating that it was for a protection visa. The Tribunal does not accept that the applicant instructed anyone to lodge a protection visa application on his behalf in a timely fashion. His contention that he did not know that a protection visa could be applied for after he became unlawful was unpersuasive, given that he did not seek any qualified advice on this important matter.
The applicant contended that his brother had been moved out of the family home due to concerns about his safety. The Tribunal is not satisfied that this is the reason.
In summary, the Tribunal is not satisfied that the applicant faces a real chance of serious harm from the family of his ex wife, or from the authorities of Sri Lanka. The applicant does not have a well-founded fear of persecution and is not a person to whom Australia owes protection obligations under the Refugees Convention.
Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions. As the Tribunal has already found that there is no factual basis for the applicant facing a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims.
The applicant put forward that he was depressed about his visa situation and that the situation in Sri Lanka was even more unstable, economically and politically, than when he left. The Tribunal understands that this is the case, however it is not satisfied that these matters amount to significant harm as defined.
CONCLUSION
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a). The Tribunal is also 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.
Genevieve Hamilton
Member

[2023] AATA 2005

18 April 2023

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