1906866 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse the applicant, a Tamil male from Sri Lanka, a protection visa. The applicant arrived in Australia in March 2010 and applied for a Safe Haven Enterprise Visa in September 2018. He claimed he feared harm upon return to Sri Lanka due to past political activities, detention, torture, and abduction, as well as his ethnicity and subsequent involvement in diaspora activities in Australia. The delegate had rejected these claims, finding inconsistencies and a lack of credibility, and concluded the applicant did not have a well-founded fear of persecution or a real risk of significant harm.

The court was required to determine whether the applicant met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) or the complementary protection criterion under s 36(2)(aa). This involved assessing the applicant's claims of past persecution and his fear of future harm in Sri Lanka, considering the delegate's findings and the available country information regarding the treatment of Tamils by Sri Lankan authorities. The court also had to consider whether any alleged past persecution or current risks were sufficiently serious to engage Australia's protection obligations.

The court found that it was not necessary to make findings of fact on every claim made by the applicant. Instead, the court determined that the decision under review should be set aside and the application remitted. The court directed that the applicant satisfies the refugee criterion under s 36(2)(a) of the Act, indicating that Australia has protection obligations towards him.