1903556 (Refugee)

1903556 (Refugee) [2023] AATA 4503 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ganasan Arujunan (MARN: 1383868)
CASE NUMBER:  1903556
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Jessica Henderson
DATE:19 October 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 19 October 2023 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Christian Tamil – sur place claims – applicant’s twin brother’s protection visa – identical biometrics – particular social group – identical twins of persons at risk – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 dependant.
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 25 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Sri Lanka who claims to be a Christian Tamil. He arrived in Australia [in] May 2010 as an unauthorised maritime arrival. A Refugee Status Assessment (protection claims) request lodged on 14 August 2010 was unsuccessful. He applied for judicial review which was referred to the Independent Protection Assessment Office (IPAO). [In] March 2012 the IPAO recommended that the applicant was not a person in respect of whom Australia has protection obligations under the 1951 Convection and 1967 Protocol relating to the Status of Refugees.
The applicant sought review, and by order dated [in] March 2015 the Federal Circuit Court of Australia found that the recommendation of the IPAO was affected by legal error.
On 24 August 2018 the Department notified the applicant that he was able to make a valid application for a Safe Haven Enterprise (Class XE) Subclass 790 and the applicant made the application on 19 September 2018.
On 25 January 2019 a delegate of the Minister refused to grant the visa on the basis that there was no real chance that the applicant would face serious harm on the basis of imputed LTTE association based on his background, including any previous arrests, his ethnicity, or the area from where he originated. The delegate considered that he did not have a profile of interest to the Sri Lankan authorities. Further, the delegate considered that there was no real risk of the applicant suffering significant harm if he were returned to Sri Lanka.
The applicant appeared before the Tribunal on 23 August 2023 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.
The applicant was represented in relation to the review.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his application for a protection visa the applicant says that he left Sri Lanka illegally through Columbo airport, where he bribed officials to let him out of the country. He says that he arrived in India [in] December 2007 where he remained [until] April 2010, and that he was granted protection in India.
Protection visa applications
The applicant’s claims as set out in his protection visa application include:
a.He left Sri Lanka because there was an Ethnic war between the Sri Lankan forces and the Tamil Liberation forces. As a young Tamil, he was targeted by the Sr Lankan (SL) forces as a “terrorist” and an “informer” and was “continuously harassed”. The occupation of the Tamil areas by the military forces were terrorising and abducting young families with enforced disappearances. He was fearful for his life and left Sri Lanka. He was picked up by the SL intelligence and taken to the 4^th floor CID branch, where he was bitten and tortured. SL intelligence demanded that he confess to being a Tamil Tiger.
b.He says that experienced harm in Sri Lanka, comprising multiple arrests and torture. He says that the torture included deprivation of food and water, as well as being bitten and having his hands tied. He is not specific about other forms of torture, but his list of what happened to him is exclusive not inclusive.
c.The applicant says that he was released after his relatives bribed the SL officers.
d.He thinks that if he goes back to Sri Lanka the intelligence agency will have his record and abduct him. He says that he will ‘disappear’ meaning that he will be killed. He says that the ‘locals’ will inform the officers of his return because they pay informers, and that he will be targeted by the “occupied army” and the “paramilitary army”.
The applicant conceded in his application that he has previously overstayed a visa in [Country 1]. He was deported from [Country 1] [in] November 1998.
Pre-hearing submissions
On 16 August 2023 the Tribunal received a statutory declaration by the applicant dated 15 August 2023. It included the following sur place claims:
a.After coming to Perth the applicant participated and attended Tamil and LTTE events organised by the Australian Tamil Congress (ATC) in Perth;
b.He has become a committee member of the ATC, and as such he is responsible for creating LTTE related events, collecting funds, recruiting members, and creating awareness of the LTTE struggle and the sufferings of Tamils;
c.He is a member of the Transnational Government of Tamil Eelam (a membership card was attached to the submission), and the Tamil National Arts and Cultural Council (Inc) WA.
d.Because of his association with these bodies, and being instrumental to yearly commemorative events, protests and picketing against the Sri Lankan government, he fears significant harm if returned to Sri Lanka. He says that the Sri Lankan security agencies monitor and gather information on these events.
The statutory declaration also set out the purported reasons for the applicant’s allegiance to LTTE and attached the ATC document titled “A Blueprint for a peaceful Sri Lanka 2010”. The applicant’s reasons for his allegiance included “Land grab by the army, the relocation of Singhalese people to the Northern and Eastern provinces, and the significant presence of military in the Northern and Eastern provinces” which he says are “testimonies to the worse sufferings of the Tamils”.
By email dated 17 August 2023 the applicant sent the Tribunal a response to hearing and a letter from the Australian Tamil Congress dated [in] August 2023. The latter asserted that the applicant has participated and organised Sri Lankan Tamil celebrations in relation to Tamil Eelam for almost 10 years and provided details of that involvement.
By email dated 20 August 2023 the applicant sent the Tribunal print outs from his [social media] page showing links to pro-Tamil organisations. He also sent a letter from the Tamil National Arts and Cultural Council (Inc) WA dated [in] August 2023, describing the applicant as a life member of the organisation known for his active involvement within the community.
Hearing
Among other family members, the applicant’s application for a protection visa showed a brother with the same birth date as his own. On the Tribunal’s enquiry, the applicant confirmed during the hearing that this brother is his twin, and that they are monozygotic (identical) twins.
The applicant gave evidence that his twin brother is presently residing in Australia pursuant to a protection visa. He was unsure of the precise nature of the claims that his brother had made. His evidence was that his brother had his own family and they had very little to do with each other.
The Tribunal adjourned the hearing to allow the applicant to make enquiries of his brother, provide proof that they are monozygotic twins, and update the Tribunal as to the basis for his brother’s protection claims.
Applicant’s brother’s protection visa
After the hearing the Tribunal obtained the applicant’s brother’s protection visa decision record from the Department. It is an independent merits review decision made on 10 August 2011. The details it contains about the birthplace, early life, and parentage of the applicant’s brother are consistent with the details that the applicant has provided to the Tribunal.
For confidentiality reasons the Tribunal does not repeat the gravamen of the applicant’s brother’s protection visa reasons for decision. However, the Tribunal is satisfied that it was a well-balanced and reasoned decision that provided a detailed survey of the evidence that was before the delegate at the time the decision was made as well as relevant country information. There is nothing in the applicant’s brother’s claim as surveyed by the decision maker that causes the Tribunal to doubt the applicant’s claims. However, the brother’s claims had details and dimensions that the applicant’s claims lack. The reasons for decision in respect of the brother’s claims are not applicable to the applicant’s circumstances as pressed in his claim.
However, it is clear from the decision-maker’s findings about the brother that there is a real chance that the brother would be intercepted if he attempted to enter Sri Lanka and at least questioned, with a further real chance that he would be detained and tortured. The decision-maker also found that the applicant’s brother would be subject to security checks throughout the country, leading to detention and interrogation.
The nature of the risk to the applicant’s brother is such that it has not abated on the most recent DFAT country information. Indeed, the approach to the 2024 presidential election is likely to exacerbate the risk of harm to the applicant’s brother.[1]
[1] DFAT Report for Sri Lanka 23 December 2021 (DFAT Report) [2.48] and [2.52]
The Tribunal is satisfied from the decision record not only that the applicant’s brother is a person in need of protection, but that anyone sharing identical biometrics with the applicant’s brother is a person in need of protection. It may explain why the applicant has previously been arrested without warning or explanation and then released after his brother’s intervention; he may, in fact, have previously been mistaken for his brother in Sri Lanka.
Post hearing submissions
The applicant’s agent forwarded additional documents after the hearing:
a.A copy of the applicant’s brother’s passport;
b.A copy of the applicant’s brother’s driver’s licence;
c.A copy of the applicant’s driver’s licence;
d.A letter from [Hospital 1] dated [in] May 2012 confirming that the applicant was admitted to the psychiatric ward for seven days and has features of PTSD and major depressive disorder.
The applicant and his brother appear from the photographs to have a very similar appearance. The mild differences in their appearance could be explained by different circumstances in which the pictures were taken; the brother’s skin appears a little darker which could be an indication that he had spent more time in the sun immediately prior to the photograph being taken. Their noses and jaws look slightly different, but this could be explained by the camera angle – the pictures are taken from a different perspective. They are a slightly different weight, which gives their cheeks a slightly different look. Their hairstyles are different.
Based on the Tribunal’s observation of the applicant at the hearing in August, the Tribunal would be satisfied that either one of the photographs was a picture of the applicant.
The applicant has not provided certain proof that he and his brother are monozygotic twins. That level of certainty could only come from fingerprint analysis or DNA evidence, neither of which is presently available nor could be obtained by the applicant without the co-operation of the brother. However, the Tribunal is satisfied on the evidence that he and his brother share the same (or a very similar) appearance, as well as the same birth date and birthplace. The Tribunal accepts that the applicant and his brother are identical twins.
Refugee criteria
Particular social group
A family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, this is subject to s 5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) 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) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
The applicant’s brother is a person who has found to be at risk because of a reason mentioned in paragraph 5J(1)(a).
The Tribunal is satisfied that the applicant is a member of the particular social group comprising people who are identical twins of persons at risk because of a reason mentioned in paragraph 5J(1)(a).
Real chance of serious harm
On the question of what happens when a Sri Lankan citizen returns to Sri Lanka, relevantly referring to what happens to a Sri Lankan citizen residing in the United Kingdom, it is noted in KK and RS[2] that the citizen would require a temporary travel document. It is further noted as follows:
[2] KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 0130 (IAC)
(10)     Prior to the return of an individual traveling on a TTD, GoSL is reasonably likely to have obtained information on the following matters:
i.whether the individual is associated in any way with a particular diaspora organisation;
ii.whether they have attended meetings and/or demonstrations and if so, at least approximately how frequently this has occurred;
iii.the nature of involvement in these events, such as, for example, whether they played a prominent part or have been holding flags or banners displaying the LTTE emblem;
iv.any organisational and/or promotional roles (formal or otherwise) undertaken on behalf of a diaspora organisation;
v.       attendance at commemorative events such as Heroes Day;
vi.meaningful fundraising on behalf of or the provision of such funding to an organisation;
vii.      authorship of, or appearance in, articles, whether published in print or online;
viii.     any presence on social media;
ix.       any political lobbying on behalf of an organisation;
x.       the signing of petitions perceived as being anti-government.
(11)     Those in possession of a valid passport are not interviewed at the SLHC. The absence of an interview at SLHC does not, however, discount the ability of GoSL to obtain information on the matters set out in (10), above, in respect of an individual with a valid passport using other methods employed as part of its intelligence-gathering regime, as described in (8). When considering the case of an individual in possession of a valid passport, a judge must assess the range of matters listed in (10), above, and the extent of the authorities’ knowledge reasonably likely to exist in the context of a more restricted information-gathering apparatus. This may have a bearing on, for example, the question of whether it is reasonably likely that attendance at one or two demonstrations or minimal fundraising activities will have come to the attention of the authorities at all.
(12)     Whichever form of documentation is in place, it will be for the judge in any given case to determine what activities the individual has actually undertaken and make clear findings on what the authorities are reasonably likely to have become aware of prior to return.
(13)     GoSL operates a general electronic database which stores all relevant information held on an individual, whether this has been obtained from the United Kingdom or from within Sri Lanka itself. This database is accessible at the SLHC, BIA and anywhere else within Sri Lanka. Its contents will in general determine the immediate or short-term consequences for a returnee.
(14)     A stop list and watch list are still in use. These are derived from the general electronic database.
(15)     Those being returned on a TTD will be questioned on arrival at BIA. Additional questioning over and above the confirmation of identity is only reasonably likely to occur where the individual is already on either the stop list or the watch list.
(16)     Those in possession of a valid passport will only be questioned on arrival if they appear on either the stop list or the watch list.
(17)     Returnees who have no entry on the general database, or whose entry is not such as to have placed them on either the stop list or the watch list, will in general be able to pass through the airport unhindered and return to the home area without being subject to any further action by the authorities (subject to an application of the HJ (Iran) principle).
(18)     Only those against whom there is an extant arrest warrant and/or a court order will appear on the stop list. Returnees falling within this category will be detained at the airport.
(19)     Returnees who appear on the watch list will fall into one of two sub-categories: (i) those who, because of their existing profile, are deemed to be of sufficiently strong adverse interest to warrant detention once the individual has travelled back to their home area or some other place of resettlement; and (ii) those who are of interest, not at a level sufficient to justify detention at that point in time, but will be monitored by the authorities in their home area or wherever else they may be able to resettle.
(20)     In respect of those falling within sub-category (i), the question of whether an individual has, or is perceived to have, undertaken a “significant role” in Tamil separatism remains the appropriate touchstone. In making this evaluative judgment, GoSL will seek to identify those whom it perceives as constituting a threat to the integrity of the Sri Lankan state by reason of their committed activism in furtherance of the establishment of Tamil Eelam.
(21)     The term “significant role” does not require an individual to show that they have held a formal position in an organisation, are a member of such, or that their activities have been “high profile” or “prominent”. The assessment of their profile will always be fact-specific, but will be informed by an indicator-based approach, taking into account the following non-exhaustive factors, none of which will in general be determinative:
i.the nature of any diaspora organisation on behalf of which an individual has been active. That an organisation has been proscribed under the 2012 UN Regulations will be relatively significant in terms of the level of adverse interest reasonably likely to be attributed to an individual associated with it;
ii.        the type of activities undertaken;
iii.       the extent of any activities;
iv.       the duration of any activities;
v.       any relevant history in Sri Lanka;
vi.       any relevant familial connections.
(22)     The monitoring undertaken by the authorities in respect of returnees in sub-category (ii) in (19), above, will not, in general, amount to persecution or ill-treatment contrary to Article 3 ECHR.
(23)     It is not reasonably likely that a returnee subject to monitoring will be sent for “rehabilitation”.
(24)     In general, it is not reasonably likely that a returnee subject to monitoring will be recruited as an informant or prosecuted for a refusal to undertake such a role.
(25)     Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or are associated with publications critical of the government, face a reasonable likelihood of being detained after return, whether or not they continue with their activities.
(26)     Individuals who have given evidence to the LLRC implicating the Sri Lankan security forces, armed forces, or the Sri Lankan authorities in alleged war crimes, also face a reasonable likelihood of being detained after their return. It is for the individual concerned to establish that GoSL will be aware of the provision of such evidence.
(27)     There is a reasonable likelihood that those detained by the Sri Lankan authorities will be subjected to persecutory treatment within the meaning of the Refugee Convention and ill-treatment contrary to Article 3 ECHR.
(28)     Internal relocation is not an option within Sri Lanka for a person at risk from the authorities.
(29)     In appropriate cases, consideration must be given to whether the exclusion clauses under Article 1F of the Refugee Convention are applicable.

The Tribunal considers that there is a real chance that on entry into Sri Lanka the applicant’s identity will be checked against a watch list on which there is a real chance that his brother’s details appear. There is a real chance that the applicant’s personal details will match sufficient of his brother’s personal details to prompt a reasonable suspicion that the applicant is, in fact, his brother. It is not clear how, at that stage, the applicant could conclusively prove that he is not his brother. At the least, he is likely to be detained and questioned, and his activities in Australia are likely to become known.
The 2021 DFAT Report contains the following information about detention and prison in Sri Lanka:
5.10 In general, prison conditions in Sri Lanka do not meet international standards, including due to old infrastructure, overcrowding, and a shortage of adequate health and sanitary facilities. The HRCSL in its study of prisons in 2020 found that the ‘treatment and detention conditions of prisoners fall far below the threshold of basic living standards’. The US Department of State reported in 2018 that only some of the larger prisons had hospitals, and that prisoners requiring medical care in smaller prisons were typically transferred to the nearest local hospital. Some facilities reportedly do not segregate juveniles and adults, or remand and convicted detainees. In many prisons, inmates reportedly slept on concrete floors, and prisons often lacked natural light or sufficient ventilation.
5.11 Overcrowding in Sri Lankan prisons is a major issue. According to official statistics, in 2020, the number of prisoners (approximately 90,000 prisoners on remand and 19,900 convicted detainees) exceeded prison capacity by nearly 64 per cent. Over half of the prison population is estimated to be awaiting trial. Remand detention typically lasts years and is considered as part of the final sentence at the discretion of judges. According to the HRCSL, the overcrowding of prisons is also impacted by the large number of convicted prisoners imprisoned due to the inability to pay fines and the non-payment of debt and maintenance payments.
5.12 The International Committee of the Red Cross (ICRC) has the right to access to all places of detention and all categories of detainees in Sri Lanka, including those held under the PTA and those undergoing rehabilitation for drug-related offences. The ICRC receives notification of arrest but, given resource constraints, can take some time to visit detainees to assess their welfare. The HRCSL also has the right to access a number of places of detention without restrictions from the authorities, including for unannounced visits.
It also makes the following observations about torture in custody:
4.13 In October 2016, the HRCSL submitted a report to the UN Committee against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that police use torture during interrogation and arrest regardless of the nature of the suspected offence. The ITJP cited 76 alleged cases of torture between 2015 and 2017 involving Tamils suspected of LTTE involvement, the majority of which followed ‘white van’ abductions, and were reportedly conducted by Counter-Terrorism Investigations Division (CTID), CID and members of the armed forces. All cases allegedly involved physical and psychological torture, such as beatings, burning, asphyxiation and rape. In its 2020 report on human rights, the US Department of State stated that ‘torture and excessive use of force by police, particularly to extract confessions, remained endemic.’
4.14 Multiple local sources told DFAT police routinely mistreat suspects during criminal investigations, including using torture as a way of extracting confessions. Sources also told DFAT torture was common in prisons. Torture, where it occurred, was not confined to a particular geographic region or ethnic group, but was a problem countrywide that affected all communities, though more likely to affect the poor and marginalised, including members of criminal groups and LGBTI individuals, among others. In recent years, the HRCSL has received hundreds of complaints of torture annually, chiefly claiming its use by various departments of the Sri Lanka police. Individuals suspected of being involved in the drug trade were identified as being particularly vulnerable to the practice.
4.15 Sri Lanka lacks independent and efficient mechanisms to address complaints of torture. While mechanisms exist, they are typically not effective in practice. For example, the HRCSL can inquire into complaints of torture and make recommendations, including for prosecution, to the Attorney-General’s Department. The HRCSL can also recommend disciplinary action against offenders by relevant state institutions and financial compensation for victims. According to the US Department of State reporting, the HRCSL documented 260 complaints of physical and mental torture from January to August 2020 in addition to 37 complaints from prisoners. In response to allegations of torture, the HRCSL carried out routine visits of detention centres, but DFAT cannot verify if such visits continue. The Supreme Court has jurisdiction to hear and determine complaints of fundamental rights violations, including torture, but judgements can take many years. Complainants have difficulty gaining access to the Supreme Court, as it sits only in Colombo and legal costs can be prohibitive.
4.16 Local sources told DFAT that when the HRCSL was independently investigating and documenting torture cases, while it could not bring about the prosecution of responsible state agents, it could offer some protection by scrutinising places of detention and putting perpetrators on notice. However, those sources maintained that with the passage of the 20th Amendment to the Constitution, the HRCSL had ceased to be truly independent and was thus much less effective in its anti-torture role.
4.17 DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence.
DFAT concludes that Sri Lankans detained by the authorities face a moderate risk of torture, especially for those who are perceived to challenge the government.[3]
[3] [4.18]
The applicant has given a credible account of being detained and tortured previously in Sri Lanka. The Tribunal accepts that he has previously been tortured in detention and considers that there is a real chance that it was because of his resemblance to his brother.
The Tribunal considers there is a real chance that the applicant will be detained and tortured on his return to Sri Lanka, and that it will be for the essential and significant reason that he is a member of the identified social group.
The Tribunal is not aware of any safe third country in which the applicant can reside. There are no effective protection measures available to the applicant because the risk of harm accrues at the point of entry at the hands of government officials.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jessica Henderson
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.
…

[2023] AATA 4503

19 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies