1907253 (Refugee)

1907253 (Refugee) [2024] AATA 4413 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 1907253

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Adrienne Anderson
DATE:13 September 2024
PLACE OF DECISION: Melbourne
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 13 September 2024 at 3:19pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – political opinion – Liberation Tigers of Tamil Eelam member – detention – physical assault – torture – Karuna group extortion – political activities in Australia – ongoing interest of the Sri Lankan authorities – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Chen Shi Hai v MIMA [2000] HCA 19
MIAC v SZJGV (2009) 238 CLR 642
SAAK v MIMA (2002) 121 FCR 185
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 29 June 2018. The procedural history of this review application is described further below.
The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or 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), they 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 they 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The delegate’s decision records that the applicant entered Australia [in] February 2010 by boat, with no valid travel document. The applicant has consistently identified himself as [name], born [on date] in [his home] village, Trincomalee District, Eastern Province, Sri Lanka.
Additionally, the delegate’s decision states that the applicant provided his Sri Lankan National identity card at his departmental interview. The delegate accepted the applicant’s identity to be as stated and that the applicant is a Sri Lankan national. The Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as the country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old man from Trincomalee in Sri Lanka’s Eastern Province. He is of Tamil ethnicity and Christian religion. The applicant is married with [children] aged [specified ages]. His wife and children live in [Town 1], Jaffna District.
The applicant’s parents are deceased. The applicant gave evidence at hearing that one of his brothers, [Brother A], is deceased, and the other, [Brother B], has been missing since 1992. The applicant’s remaining [siblings] reside in Sri Lanka.
The applicant departed Sri Lanka via Colombo airport, on his own passport, [in] March 2006. The Tribunal notes that this information was provided to the Department in 2011 from the Sri Lankan Department of Immigration and Emigration pursuant to a departmental request made through the Australian High Commission of Colombo.
Procedural history in the applicant’s case
The applicant applied for a Safe Haven Enterprise Visa (SHEV) on 19 September 2018. He was interviewed in respect of this application on 21 January 2019. Following this interview, on 6 February 2019, the delegate invited the applicant to comment on information provided under s 57 of the Act, to which the applicant responded on 7 March 2019. The delegate made a decision to refuse to grant the visa on 15 March 2019. The reasons for this decision are discussed below in the section headed ‘The applicant’s claims for protection’.
There is a long history to this case prior to the SHEV application under review. According to departmental records, the procedural history of the applicant’s case includes the following:
·Entry interview on 9 March 2010;
·A request by the applicant for a Refugee Status Assessment (RSA) made on 4 April 2010, with an interview on 7 April 2010 and negative outcome on 20 April 2010;
·An independent merits review (IMR) heard on 21 November 2010, with a negative outcome on 11 April 2011;
·An appeal lodged with the Federal Magistrates Court of Australia [in] May 2011, with an unsuccessful outcome [in] September 2011;
·An appeal lodged with the Full Federal Court [in] October 2011, with an unsuccessful outcome [in] June 2012;
·An International Treaty Obligations Assessment (ITOA), with a negative outcome [in] January 2012;
·Post-review reconsideration of protection claims, assessed not to meet Minister’s guidelines for intervention [in] October 2012;
·Interview in respect of a second ITOA conducted [in] January 2016.
Material before the Tribunal
The Tribunal has reviewed the documentary evidence and material before it, including the following:
a.Written record of entry interview dated 9 March 2010;
b.In relation to the RSA process: applicant’s request form and statutory declaration dated 4 April 2010;
c.In relation to the SHEV process: application form, applicant’s statutory declaration dated 10 September 2018, and submissions dated 4 February 2019 and 7 March 2019;
d.Audio recordings of the RSA, IMR, ITOA and SHEV interviews;
e.Decision records in respect of the RSA, IMR and SHEV processes;
f.In relation to the Tribunal proceedings in the present review:
i.Applicant’s statutory declaration, dated 15 July 2024;
ii.Submissions, dated 16 July 2024 and 30 August 2024;
iii.Signed statement by the applicant’s wife [named], dated 18 April 2024;
iv.Three police messages, dated [in] October 2010, [June] 2018, and [February] 2024 and accompanying translations (originals sighted at hearing);
v.Letter from [Ms A], Team Leader, [Agency 1], dated 19 July 2024;
vi.Two photographs depicting the applicant at diaspora activities in Melbourne;
vii.Letter from [Doctor A], [from a named] Medical Centre, dated 27 August 2024.
At hearing the applicant’s representative, Ms Coffey, informed the Tribunal of her intention to provide a comprehensive medical report from [Agency 1] with respect to the applicant’s mental health at a later date. Ms Coffey explained that a report was not immediately available because the applicant had recently been allocated a new counsellor following the departure of his regular counsellor in May 2024.
The letter from [Ms A], listed above, set out these circumstances. It also states that the applicant was referred to [Agency 1] in August 2020 and that in the September 2020 intake assessment, the following symptoms were reported by the applicant: insomnia, nightmares and occasional flashbacks, depressive symptoms, excessive worries, and guilt and loss relating to separation from the applicant’s wife and children. The letter also stated that during an assessment period of 17 December 2020 and 21 December 2022 the applicant was assessed as having chronic and low-risk suicidal ideation. [Ms A] also recorded in her letter that the applicant has engaged well in trauma-focused counselling and attended the service regularly on a fortnightly or weekly basis.
The Tribunal allowed a period of two weeks for the full report to be provided. The Tribunal subsequently agreed to extensions of this timeframe on 12 August 2024, 19 August 2024, and 27 August 2024. On 2 September 2024, the Tribunal received a further request for an extension of 6 weeks. The Tribunal granted this request.
However, in light of the significant delay that would be incurred and because the Tribunal has determined that the review can be resolved favourably without the report, it has proceeded to do so.
In relation to the applicant’s mental health, the Tribunal accepts, on the basis of the evidence before it, that the applicant is a current client of [Agency 1], has engaged in trauma-focused counselling for a period of 4 years, and has been assessed in the past to suffer from chronic suicidal ideation. The Tribunal also accepts, as set out in the letter from [Doctor A], also listed above, that the applicant is currently experiencing nightmares and hypervigilance.
The applicant’s claims for protection
In summary, the applicant claims to fear harm from the Sri Lankan authorities on return to Sri Lanka because of his significant involvement in the Liberation Tigers of Tamil Eelam (LTTE), his brother’s high-profile role in the LTTE, his Tamil ethnicity and area of origin, and his time abroad and involvement in Tamil diaspora activities (including attending protests and participating in Tamil commemoration events).
He claims to be of ongoing interest to the Sri Lankan authorities. As indicated above, the applicant provided three messages sent from the Prevention of Terrorism Division [in Location 1] to the [Town 1] police station requesting the police send the applicant to the Division on specified dates and times in 2007, 2018 and 2024. The messages are recorded on Sri Lanka police message forms.
Evolution of the applicant’s claims
Since his arrival in Australia, the applicant’s claims have evolved in respect of certain matters.
The applicant’s evidence in respect of other matters has remained consistent and constitute a core account which have been accepted by the relevant decision-maker at all stages of the process. These matters are that:
a.The applicant’s [Brother A] joined the LTTE in the late 1980s.
b.[Brother A] had a political role as an officer in the LTTE, assisting the family of LTTE fighters who died and writing about LTTE campaigns and martyrs.
c.The applicant experienced harassment and physical abuse at the hands of the Sri Lankan Army (SLA) after his brother joined the LTTE.
d.The applicant’s [Brother B] disappeared in 1992, and was likely killed by the SLA.
e.[Brother A] was killed during fighting in 1997 and is considered a hero. When the applicant’s family held a memorial for [Brother A], the Sri Lankan army came and destroyed property and assaulted the people who had gathered.
f.The applicant lived in Jaffna from 1992-1995; in the Vanni from 1995-1999; from approximately 1999/2000 in a camp at [a named location] until 2002; and in Jaffna from 2002. The Tribunal notes that the applicant being in these locations at the relevant times is consistent with the evidence he consistently gave as to the places of birth of his children.
The claims or evidence which have evolved relate to the extent of the applicant’s own involvement with the LTTE, his interactions with the Sri Lankan authorities and/or paramilitary groups in Sri Lanka prior to his departure from Sri Lanka, and the timing and circumstances in which he left Sri Lanka and arrived in Australia. With regard to these matters, the applicant’s claims at various stages of the process can be relevantly summarised as follows:
a.At the entry interview, RSA and IMR stages, the applicant claimed to have been operating a [business] which took him near to his home village in 2008. When visiting home, the Sri Lankan army stopped him at a checkpoint and, upon seeing his residence was Jaffna, detained and questioned the applicant at a nearby camp. The applicant was then taken to a Karuna group camp for further questioning. He was told that he had to show them LTTE camps and travel routes and was held and beaten for three months when he refused. He was released upon payment of a bribe but had to report monthly. In December 2009 he made arrangements to flee to India by boat with the help of a smuggler named [Mr B]. The applicant left Sri Lanka in early 2010.
b.At the IMR interview, the applicant added a claim that he had been asked in December 2009 by the Karuna group for a further contribution of a million rupees. He also stated that he had received a letter from his wife to the effect that she is being harassed by auxiliary groups and receiving threatening phone calls.
c.At an interview in January 2016 in respect of the second ITOA, the applicant stated that he lived in India for two years prior to coming to Australia, meaning that he had actually left Sri Lanka for India in 2008. He also stated, for the first time, that he had been in the LTTE, saying that he was asked to join in 1992. He claimed that he was based in [Area 1] with LTTE cadres for 6-8 months, during which time he did their accounts. He stated that he was then taken to Jaffna and let go. The applicant told the delegate, when asked, that he had not previously disclosed this LTTE involvement because he had been told on the boat that he should only tell ASIO (the Australian Security Intelligence Organisation) about being in the LTTE and going to India.
d.In his SHEV application, the applicant claimed that as a result of his brother’s [Brother B’s] disappearance, and his own ongoing mistreatment at the hands of the SLA, in 1992 he approached two friends of his brother who were leaders in the LTTE and asked for assistance to leave the area. They took him into the jungle where he was required to undergo training with the LTTE. As a result of the beatings he had been subjected to by the SLA he struggled with the physical nature of the training. Given the esteem his family was held in, he was permitted to assist the LTTE in another way. The applicant joined the accounts section and was given the nickname [Nickname 1].
e.The applicant stated that he assisted the LTTE between 1992 and 1995. His role included going to different LTTE camps to undertake accounting work for the LTTE and assisting with transporting civilians and LTTE cadres through the jungle.
f.The applicant stated he requested to leave the LTTE in 1995. After being punished with 1.5 months manual labour he was released. He stated that he spent six months in Jaffna before moving to the Vanni. In 2000, the applicant and his wife and child lived in an IDP camp before returning to Jaffna on release, where the applicant set up a [business]. He travelled throughout the North-East, in Tamil controlled areas, [trading goods].
g.The applicant stated that he briefly visited India with a cousin in 2006 before returning to visit his family in Trincomalee. When the war broke out, he was unable to leave the area. In 2008, the applicant was approached by [Mr C], a member of the Karuna group who had worked with the applicant’s brother in the LTTE and who asked the applicant for information about the LTTE. He was detained for various lengths of time between two different camps, totalling three months. Upon payment of a bribe through his father he was released with the direction to regularly sign in. He was asked by the Karuna group when signing in to make financial contributions to their campaigns but did not have enough money to do so. The applicant used an agent to flee Sri Lanka without detection from the authorities.
h.The applicant stated that his wife had been harassed by the Sri Lankan authorities in his absence on various occasions between 2013-2017. The applicant stated that his [child] had also faced harassment.
i.At the SHEV interview, the applicant added that he had received a [specified gift] as a reward from the LTTE leader, Prabhakaran and that he had worked in an LTTE-managed [business] for 6-7 months during the ceasefire in 2004.
As indicated above, after the interview, the delegate put adverse information to the applicant under s 57 of the Act, namely that the Department had information indicating that the applicant departed Sri Lanka legally in March 2006 and had not returned to Sri Lanka since that departure. In response, the applicant stated that he left Sri Lanka in 2006, having travelled to Trincomalee in 2005 and experiencing the issues with [Mr C] and the Karuna group that he had previously described as taking place in 2008. He stated that he had not disclosed his travel to India on the advice of the people smugglers because he would be treated adversely by Australian authorities if he did.

The delegate did not accept that the applicant was detained and tortured by [Mr C] as claimed, as this was implausible and inconsistent with country information at the time. In mid-2006 a ceasefire was in place and the delegate considered that there would have been no need to detain someone with knowledge of the northern road network given that travel was possible between government- and LTTE-controlled areas at that time. The delegate also considered the applicant not credible because he had given inconsistent accounts of his departure from Sri Lanka and the amount of money paid to effect his release from detention. The delegate also noted that he had demonstrated a willingness to repeatedly mislead the Department and as such found the applicant to be generally not credible.
In relation to the applicant’s LTTE involvement, the delegate did not accept that he was a member given his inconsistent accounts and lack of general credibility as well as his ability to depart from Sri Lanka legally in 2006.
The delegate accepted that the applicant was a Tamil man from Trincomalee, in Sri Lanka’s East, and that he had spent time in the north of Sri Lanka as well. The delegate also accepted that the applicant’s brother [Brother A] was an officer in the LTTE and was killed in combat in 1997.
The delegate further accepted that the applicant’s brother [Brother B] was abducted by the Sri Lankan authorities in 1992 and killed because of his relationship to the applicant’s brother [Brother A].
The delegate was not satisfied that the applicant would face a real chance of serious harm on the basis of his connection to his brother and as a failed asylum-seeker. The delegate did not accept the applicant would be of interest to the Sri Lankan authorities on return because he had not had significant involvement in the LTTE during the war, was not a high ranked officer, and had not been involved in any activities in Australia in support of a Tamil separatist movement.
In his pre-hearing statement to the Tribunal, the applicant disclosed further involvement in the LTTE. He stated that he held various financial roles between 1990-2006 in locations throughout the north. He also stated that the LTTE arranged a role for him in India, which he carried out between 2006-2008 before the conditions changed and it became too difficult to work for the LTTE in India. The applicant’s LTTE activities are detailed further below, in the section headed ‘The applicant’s involvement in the LTTE’.
His statement addressed the reasons he had not disclosed this level of involvement at a prior stage, stating that he is traumatised and has always been scared to explain the full extent of his involvement to the Department, including because of the potential consequences to himself and to his wife and children in Sri Lanka, were that information to be shared with the Sri Lankan authorities. The applicant stated that he had come to understand the importance of full disclosure through his legal and medical supports.
In his oral evidence to the Tribunal, the applicant described his background, his involvement and work with the LTTE, his reasons for leaving Sri Lanka, activities in Australia, and his fears on return. Relevant aspects of this evidence are discussed in more detail below in the sections which follow.
The applicant’s brother’s involvement with the LTTE
The applicant claims, and the delegate accepted, that the applicant’s [Brother A] joined the LTTE in the late 1980s and was killed during fighting in 1997.
The Tribunal accepts that in the late 1980s, prompted by attacks on Tamil youths in the area by the SLA, the applicant’s brother [Brother A] voluntarily joined the LTTE. The Tribunal accepts that he had an active fighting role, was involved in training cadres, and had a role within the political wing organising assistance for family members of individuals who died while in the LTTE. The Tribunal also accepts that he was killed in combat in 1997.
The applicant gave credible and compelling evidence at hearing of his experiences in the late 1980s at the hands of the SLA as a consequence of his brother’s role in the LTTE. The applicant was visibly distressed when discussing the long-term physical effects of his mistreatment. The Tribunal accepts that as a consequence of [Brother A’s] involvement with the LTTE, the applicant and his family were perceived to be LTTE supporters, and that the applicant was interrogated and beaten on multiple occasions by the SLA. On the basis of the applicant’s consistent and credible evidence in this regard, the Tribunal also accepts, as did the delegate, that the applicant’s brother [Brother B] was likely abducted and killed by the SLA in 1992 because of [Brother A’s] role in the LTTE.
The applicant’s evidence in relation to his and his family members’ experiences is consistent with country information about the period in question, which indicates attacks and killings by the authorities on Tamil civilians in the East took place during the 1980s,[1] as did abductions leading to disappearance and death, particularly from 1990-1992, perpetrated by Sri Lankan government security forces against Tamil civilians in the East.[2]
[1] Public Interest Advocacy Centre (PIAC), Tides of Violence: Mapping the Sri Lankan Conflict from 1983 to 2009 (2^nd edition, May 2019) 10.
[2] Ibid 11.
The applicant’s involvement with the LTTE
The applicant made the following claims in his statement and oral evidence to the Tribunal:
a.He voluntarily joined the LTTE in 1990 to avoid further harassment and mistreatment by the SLA;
b.He received three months of training and was given the name [Nickname 1], identification [number];
c.His training took place in two locations; a forested area known as [Location 2] and then in [Location 3], Kilinochchi. The training master was called [name] and the training that the applicant undertook involved learning about military tactics, guerrilla warfare, and given the nature of the area in which the applicant was training in Kilinochchi, how to advance in sandy conditions;
d.Because of his brother’s role, the applicant was assigned responsibilities in the finance wing. From 1990-1992 he was Chief Financial Officer for [one area], in charge of distributing funds for food, clothing, medical care and other provisions for the families of martyrs and cadres;
e.This work required the applicant to travel through forest routes to collect money from LTTE bases. He distributed this money to LTTE cadres who brought food with the funds. The applicant was responsible for collecting the receipts, reporting back about how the money was spent, and balancing the accounts;
f.At various times during 1990-1991, when the LTTE needed fighters, the applicant also took part in battles, such as [multiple locations].
g.From 1992-1994, he was the financial officer for [Employer 1] near Jaffna.
h.The applicant’s role at [this business] required him to purchase [raw materials]. The [business] then manufactured [products] which were sold locally. The business profit was sent to the LTTE;
i.In this role the applicant had [number] employees reporting to him. He recruited [specified staff].
j.Because the applicant ran this business profitably, Prabhakaran, the leader of the LTTE, awarded him a [specified gift] on one of his visits to the [business];
k.In 1995, he was displaced to the Vanni as the result of an SLA operation to capture Jaffna. There he became manager of [Employer 2], which was LTTE-run and provided food to members of the LTTE. The applicant provided food to the supplies wing of the LTTE as well as selling goods locally and returning the profit to the LTTE.
l.After [Brother A’s] death in 1997, the applicant was rewarded with other roles which he maintained at the same time as his other roles in the Vanni, listed above. He became [details deleted].
m.The applicant continued these roles until 2002, but between 2000 and 2002 he stayed at the [named] settlement in an LTTE-controlled area.
n.In 2002, when the ceasefire began, the applicant moved to his wife’s home area of [Town 1] in Jaffna where he collected funds from shop owners who owed money for purchases they had made from [Employer 1]. He stayed in [Town 1] on the weekends and during the week he travelled in the area. At this time, he was in charge of purchasing vegetables from markets and gardens and distributing these to LTTE fighters in Jaffna and the Vanni. The LTTE needed the applicant to do this role because they wanted to give supplies to its cadres without spending too much money. Additionally, one of the LTTE’s mottos was to be self-sufficient and eat local food. It was also important to take precautions when sending food between districts because of the risk that it could be poisoned.
The Tribunal notes that the delegate did not accept that the applicant had been a member of the LTTE. However, the Tribunal has had the benefit of significantly more detailed claims and oral evidence on this point, as well as documentary evidence of the Sri Lankan authorities’ interest in the applicant.
While this evidence was given at a late stage in the proceedings, and the applicant has admitted to fabricating aspects of his claims in the past, the Tribunal accepts the applicant’s account of his LTTE involvement, noting that:
a.The applicant’s stated reason for joining the LTTE voluntarily and the positions to which he was assigned was consistent with other evidence consistently given by the applicant throughout the process about his family’s involvement in the LTTE and the consequences to him of being suspected of being an LTTE supporter;
b.The applicant’s evidence of where he lived while working for the LTTE was consistent with other evidence consistently given by the applicant throughout the process in relation to where he lived and when, the timing of meeting and marrying his wife, and where he had his children. The applicant was able to relate these life events to what he was doing with the LTTE at the time and the particular operations run by the SLA affecting LTTE business without hesitation and in a manner consistent with other aspects of his account;
c.This evidence was consistent with established events corroborated by country information. For example, the applicant consistently stated that he was displaced to the Vanni in 1995 and at hearing described the SLA operation leading to that displacement, which is consistent with country information confirming that the LTTE was driven into the jungles of the Vanni in late 1995 when the government of Sri Lanka regained control of Jaffna.[3]
d.The applicant’s evidence of his activities in these locations makes logical sense in relation to the conflict in a way his previous accounts did not, as identified by previous decision-makers. For example, the applicant’s ability to travel in the North and East without consequence is explained by the applicant’s involvement in the LTTE and the periods in which he travelled for work. By contrast, the applicant’s credibility was impugned by the refugee status assessor who found it implausible that he could travel on the Jaffna and Trincomalee roads at the height of the violence without being stopped at a checkpoint or forcibly recruited to the LTTE;
a.The applicant’s evidence in relation to his activities with the LTTE was:
i.Consistent with known information about LTTE structures and ways of operating at relevant times, including information about the finance wing, the Tamil Eelam Bank, and the LTTE’s practice of establishing control over local companies and agricultural land;[4]
ii.Corroborated by documentary evidence in the form of police summons documents (discussed further below) and his wife’s statement; and
iii.Given in a compelling and credible manner with a considerable level of detail. For example, in relation to the applicant’s role [for] [a specified program] the applicant provided detailed and spontaneous information as to the nature of the [program] he oversaw and how it was run. The applicant explained that this program benefitted the LTTE because more [supplies were] produced for LTTE cadres and because they were able to sell the [associated] products from the [program] to the general public. The applicant explained how they engaged others to help in the program, how much extra [supplies were produced] and the cost of one unit of [raw materials] which local farmers paid.
[3] Centre on Conflict, Development and Peacebuilding (CCDP, Joanne Richards, Working Paper), An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE) 49.
[4] Ibid.
The applicant gave evidence that he was anxious and afraid of being deported or detained or his family harmed if he disclosed the full extent of his involvement in the LTTE. He had been told that he could be detained for five to ten years in Australia if he disclosed he was a member of the LTTE. As set out above, his statement to the Tribunal indicated that he had been supported to disclose the full extent of his involvement by his representative and medical professionals.
At hearing the Tribunal raised its concern that since his initial 2016 disclosure, his evidence as to his involvement in the LTTE had continued to evolve over time. The Tribunal had concerns about the applicant’s explanation for his non-disclosure, given that the applicant has had the same representative since the interview in respect of the second ITOA in 2016, in which the applicant began to disclose LTTE activities. However, the Tribunal notes that according to the medical evidence it is only in the last four years, subsequent to the SHEV interview, that the applicant has engaged in regular, trauma-focused counselling with specialist counsellors. The Tribunal has also considered the credibility guidelines,[5] which acknowledge that there may be good reasons for late disclosure of claims or evidence, including relevantly to the applicant, stress and anxiety about disclosing the evidence.[6] The Tribunal is mindful that other valid reasons for late disclosure of evidence include a history of trauma and fear and distrust of immigration authorities.[7]
[5] AAT, Guidelines on Credibility (July 2016).
[6] Ibid [12].
[7] See eg SAAK v MIMA (2002) 121 FCR 185, 191.
For all of the above reasons, the Tribunal accepts that the applicant was a member of the LTTE from 1990 until its demise in 2009 and that during that time he held various financial roles which contributed to the financial prosperity of the LTTE and the physical well-being and survival of its cadres.
The applicant’s departure from Sri Lanka and activities in India
Before the Tribunal, the applicant claimed that he had travelled to Trincomalee for his LTTE work, and while visiting his father’s home which was located opposite an SLA camp, was approached by [Mr C], a man who knew the applicant by sight because he had previously worked with the applicant’s brother in the LTTE. [Mr C] was now in the Karuna group, working with the Sri Lankan government and told the applicant that Sri Lankan intelligence had told them to identify former LTTE members to get their help with locating LTTE camps, leaders and members.
The applicant stated that [Mr C] told the applicant that he would be killed if he did not provide assistance. The applicant decided to cooperate and spent 3-4 days in a hotel providing information to Sri Lankan intelligence about the location of LTTE camps. [Mr C] also demanded money, and the applicant arranged for his father to pay [amount]. On leaving the hotel, the applicant feared that he would be required to give more information. The applicant told his LTTE superiors who arranged a safe house for him, and helped the applicant to go to Colombo and from there to India using an agent.
The applicant claimed that he already had a passport as the LTTE had earlier warned him that at some stage they might send him overseas to work. The applicant did not know whether the agent had made any arrangements to allow him to freely go through the airport but he was able to depart legally.
The applicant claimed that in India he lived in [a named town] with other LTTE members. He then moved to a bigger place in [Town 2]. LTTE members purchased food and medical supplies which they sent by boat to Sri Lanka. The applicant’s role was to oversee these activities to ensure that no one was giving false accounts of their spending. This had previously been a problem when ships were intercepted or lost their cargo and more costs were claimed than had been spent. The applicant stated that he was put in this role because he had demonstrated to the LTTE that he was trustworthy with money.
During the height of the war he could no longer maintain contact with or help the LTTE from India. After 2008 he no longer carried out any activities for the LTTE. He remained in India using his savings and some money he earned [through trading]. Fearing that he could be harmed by the Indian authorities, the applicant travelled to Australia in early 2010.
The Tribunal had concerns about this account, discussing with the applicant at hearing that he had previously maintained that he did not help the Karuna group and as a result was held and mistreated for a number of months. The year in which these events were said to have taken place had also evolved.
The applicant told the Tribunal that he had previously lied about being detained for 3-4 months because he wanted to hide his membership and knowledge of the LTTE. He also stated that he had lied about the timing of when he was approached by [Mr C] because he wanted to cover up that he had been working for the LTTE in India and that by saying he left Sri Lanka after the war, it would appear that he was a civilian rather than an LTTE member.
While the Tribunal has reservations about this aspect of the applicant’s evidence, having accepted the applicant and his brother’s involvement with the LTTE, as outlined above, the Tribunal considers it plausible that the applicant would be of interest in this way. The applicant’s claimed experiences are highly consistent with the independent country information indicating that in the East of Sri Lanka the Karuna group engaged in extortion and that the group coordinated with government security forces during the war, including working with military intelligence and other government security forces to identify, abduct and harm LTTE operatives and sympathizers.[8] The Tribunal notes that the applicant has consistently claimed that there was an SLA presence near his home, that he left Sri Lanka because a former LTTE member named [Mr C] working with the authorities wanted information about the LTTE, and that he had to pay them a bribe.
[8] United States Department of State (USDOS), 2006 Country Reports on Human Rights Practices – Sri Lanka (6 March 2007); USDOS, 2007 Country Reports on Human Rights Practices – Sri Lanka (11 March 2008).
The applicant’s evidence of his activities in India and why he felt compelled to leave is also consistent with information indicating that the LTTE had members undertaking logistical operations from the Indian state of Tamil Nadu and that there were increasing concerns in 2010 on behalf of the Indian state about the presence of remnants of the LTTE in India due to fears that the LTTE could regroup from there.[9] In light of the country information and the detailed account the applicant gave of his time in India, the Tribunal accepts that the applicant left Sri Lanka because he was approached as a source of intelligence on LTTE movements and that he continued to work for the LTTE for another two years in India before the war increased in intensity, stopping operations from India.
[9] 'LTTE further banned in India', Sunday Times (Sri Lanka), 14 May 2010.

The Tribunal accepts that the applicant was approached for information by an associate of his brother in the applicant’s home area but does not accept that at the time of his departure from Sri Lanka he was of general interest to the authorities, as evidenced by his ability to depart Sri Lanka without issue.
The matter of whether the applicant has subsequently become known to the authorities as a member of the LTTE is considered further in the section below.
Treatment of the applicant’s family in Sri Lanka
The applicant claims that his family have been repeatedly questioned about his whereabouts in his absence. He stated that [in] October 2007 the applicant’s wife received a message from the Sri Lankan police that the applicant must report to the Prevention of Terrorism Division Headquarters in [in Location 1]. Since the applicant did not attend, his wife was questioned about his whereabouts. She denied that she was in contact with the applicant and said that she did not know where he was.
The applicant stated that his wife has been harassed regularly by authorities, prompting the family to move on two occasions within [Town 1]. The applicant’s [child] was also harassed by the intelligence agencies on one occasion. The applicant’s wife’s statement also refers to these events. The applicant stated that [in] June 2018 and [February] 2024 the applicant’s wife received further messages requesting the applicant report to the Prevention of Terrorism Division in [in Location 1].
As set out above, the applicant provided the original police messages and translations to the Tribunal. When asked why the two messages from 2007 and 2018 were not previously provided, the applicant stated that he was afraid to ask his family to send the messages to him because it would place them in danger. He had not previously provided the 2007 message in his other processes because they showed he was of interest to the Prevention of Terrorism Division, which indicated that he was former-LTTE as members of the general public are not usually wanted by that division. He stated that they took the action of sending the documents for the Tribunal process despite the risk because it was his last opportunity to prove his situation or face being returned to Sri Lanka.
The Tribunal accepts, on the basis of this documentary evidence, that the Sri Lankan authorities have an ongoing interest in locating the applicant and that he is likely known to have been in the LTTE. Country information indicates that the Sri Lankan authorities remain highly alert to the risk of the LTTE re-emerging.[10] The DFAT report notes that Sri Lankan authorities had ‘extensive intelligence collection capabilities’ in respect of former LTTE members because they had former LTTE members who worked as informants.[11]
[10] Department of Foreign Affairs and Trade (DFAT), Country Information Report Sri Lanka (2 May 2024) [3.76].
[11] Ibid.
The applicant’s diaspora activities in Australia
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
Before the Tribunal, the applicant claimed to have attended Tamil Day commemorations in Australia, including making porridge for attendees at the May 2023 Remembrance Day event. After the hearing the applicant provided two photographs showing his attendance at a protest for Tamil rights and handing out porridge at the abovementioned event.
At hearing, the Tribunal raised its concerns with the timing of the applicant’s attendance at such events, noting that the delegate’s decision found that the applicant was not at risk because he had not attended such events and the applicant only began attending such events after this decision.
The applicant responded that he had joined the LTTE to help his people but that because the LTTE were defeated he participates in such events to remember them. In relation to the timing, he stated that he had felt able to attend such events since he disclosed his LTTE involvement to the delegate and that prior to this he did not feel that he could attend.
While the applicant stated that he began attending events after disclosing his LTTE involvement, the Tribunal notes that he first disclosed some of his activities in the ITOA interview in early 2016 but that he did not begin attending events until 2019 or 2020, after the delegate’s decision in the SHEV application. In these circumstances, the Tribunal considers that the applicant was likely motivated to engage in this conduct to strengthen his refugee claim.
However, the Tribunal is mindful that ‘human conduct is rarely, if ever, unidimensional’[12] and that behaviour may be motivated by more than one consideration. The applicant spoke at the hearing of his inability to commemorate his brother when he was in Sri Lanka, and that he would not have the freedom to do so in Sri Lanka either.
[12] Chen Shi Hai v MIMA [2000] HCA 19 [69].
At another point in the hearing, the applicant expressed his belief that Tamils were better off under the LTTE than they are now. He stated that Tamil people were happy during the LTTE’s rule and that now they are being harassed and kidnapped and that children are not safe when they are out at night. He also gave evidence with visible distress when recalling being in India during the final stages of the war when LTTE cadres were being captured and killed. Given this, the Tribunal accepts that the applicant may also have been motivated by his ongoing beliefs in Tamil independence and a wish to demonstrate respect for LTTE cadres who died fighting for the LTTE, including his brother.
The courts have found, in relation to s 91R(3), which preceded s 5J(6) and was expressed in identical terms, that the relevant conduct must have been engaged in for the sole purpose of strengthening the refugee claim.[13] This means that if a concurrent purpose exists, then the conduct in question cannot be disregarded. In the circumstances, the Tribunal considers that the applicant engaged in the conduct in Australia for purposes otherwise or in addition to the purpose of strengthening his refugee claim and finds that s 5J(6) does not apply.
[13] MIAC v SZJGV (2009) 238 CLR 642 at [13], [59]-[60].
Below, the Tribunal assesses the applicant’s risk on return to Sri Lanka on the basis of his cumulative profile, including his activities in Australia.
ASSESSMENT OF CLAIMS
The applicant’s risk on return
The applicant fears that if he were to return to Sri Lanka that he would be detained and tortured by the Sri Lankan authorities because he is a former LTTE member who, by virtue of leaving for India in 2006, was not rehabilitated at the end of the war. He also fears harm because he has been in Australia for a long time, where he has attended Tamil events.
In written submissions to the Tribunal, the applicant’s representative submitted that it is likely that the applicant is of ongoing interest to the authorities as a Tamil male who previously assisted the LTTE on ‘an ongoing and significant basis including with respect to finance, logistics and food distribution’ with a brother who was well known in the LTTE. The representative argued that the police summons documents should be given significant weight in the Tribunal’s assessment as substantive evidence of this ongoing interest and that these reports would ensure that the applicant would come to the immediate attention of the Sri Lankan authorities on re-entering the country.
For the reasons set out above the Tribunal has accepted that the applicant:
a.is from the East of Sri Lanka, spent considerable time in the North prior to his departure, and that his wife and children reside in [Town 1], Jaffna;
b.had a brother who was a high-profile member of the political wing of the LTTE;
c.was himself a member of the LTTE from 1990, carrying out activities for the LTTE in Sri Lanka until 2006 and in India from 2006-2008;
d.raised funds for the LTTE and provided material support to LTTE cadres during this time and that he was known to and rewarded by the LTTE leadership for his contribution; and
e.has participated in Tamil protest and commemorative activities in Australia for the last four to five years.
With respect to the security situation in the North and East of Sri Lanka, the DFAT report of May 2024 notes that the northern province remains heavily militarised, with one security personnel for every six civilians.[14] The East also reportedly retains a significant military presence, though to a lesser extent than that in the North.[15] DFAT notes that according to in-country sources, the military presence in the north-east had not materially reduced since the end of the war and was disproportionate to the security threat.[16] Sources also reported that the military and police had strong intelligence and surveillance capabilities, and closely monitored for separatist activity.[17]
[14] DFAT, Country Information Report Sri Lanka (2 May 2024) [2.74].
[15] Ibid [2.75].
[16] Ibid.
[17] Ibid.
Monitoring of former LTTE members is reportedly usually carried out by military intelligence and/or undercover police officers and can include visits, telephone calls and summons to
[18] Ibid [3.86].
[19] Ibid [3.89].
attend a police station for questioning.[18] DFAT advises that individuals are at low risk of official discrimination or harassment unless engaged in politically sensitive issues[19] such as promoting statehood, human rights or the war.
On this issue, DFAT further advises that:

Authorities remain highly alert to the LTTE’s potential re-emergence and to Tamil separatist activity more broadly…The security services maintain countrywide ‘stop’ and ‘watch’ lists. Stop lists include names of people who have an existing court order, arrest warrant or order to impound their Sri Lankan passport. Watch-lists include names of people whom the security services consider to be of interest, including for suspected separatist or criminal activities. Arrests for suspected support of the LTTE and/or Tamil statehood periodically occur, albeit in small numbers.[20]
Overall, DFAT assesses that former LTTE members, depending on their profile may be monitored for suspected terrorist activity. As a proscribed entity, DFAT assesses that anybody found to promote the LTTE or Tamil statehood more broadly faces a high risk of monitoring, arrest and detention.[21]
[20] Ibid [3.76].
[21] Ibid [3.77].
Those of most interest to the authorities are people who previously served in the LTTE’s political and intelligence wings; people who were involved in fundraising for the LTTE; former LTTE members proficient with explosives; and people with suspected links to proscribed individuals or entities in the Tamil diaspora.[22]
[22] Ibid [3.88].
DFAT notes in this regard that it is illegal to glorify the LTTE or commemorate the birthday of LTTE leader Prabhakaran (26 November) in Sri Lanka.[23] The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also prohibited. Those that defy these bans risk arrest and detention for terrorism offences.[24]
[23] Ibid [3.75].
[24] Ibid.
While the Wickremesinghe government has taken a less restrictive approach to Tamil war memorialisation than the previous government, in November 2023 some Heroes Day celebrations, including in Vavuniya and Batticaloa, were disrupted by police.[25] Human Rights Watch has reported that nine Tamils were arrested under the PTA as a result.[26] The OHCHR also reports that the authorities continue to use the PTA, despite the promise of a moratorium on its use, and have recently arrested and detained Tamils commemorating relatives who died in the war.[27] The OHCHR cites as an example the arrest and detention of four people in Trincomalee in May 2024 for serving rice porridge.[28] The authorities have also secured court orders to prevent some relatives of forcibly disappeared individuals and others from holding commemorations.[29]
[25] Ibid [3.15].
[26] Ibid.
[27] UN Human Rights Council, Situation of Human Rights in Sri Lanka: Comprehensive report of the United Nations Commissioner for Human Rights, 57^th sess, UN Doc A/HRC/57/19 (22 August 2024) [15].
[28] Ibid [38].
[29] Ibid.
In relation to consequences for carrying out such activities abroad, DFAT reports that people who glorify the LTTE may come to the attention of the Sri Lankan authorities due to participation in public demonstrations or other activities deemed to be promoting Tamil statehood in their countries of residence.[30]
[30] DFAT, Country Information Report Sri Lanka (2 May 2024) [3.99].
The United Kingdom (UK) Upper Tribunal has found, in relation to Tamils engaged in activities in the UK,[31] that a range of political activities abroad could result in official harassment on return.[32] These include attending demonstrations and war-related commemorative events, signing petitions, displaying flags or banners with LTTE insignia, and fundraising.[33]
[31] KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 00130 (IAC).
[32] Ibid, as noted in DFAT, Country Information Report Sri Lanka (2 May 2024) [3.100].
[33] Ibid.
In relation to the treatment of those arrested, the OHCHR has recently reported what it considered to be credible allegations of arbitrary detention, torture, ill-treatment and sexual violence perpetrated against Tamil individuals by Sri Lankan security forces, mainly in Jaffna, Kilinochchi, Mannar, Mullaitivu, and Vavuniya districts as recently as January 2024.[34] OHCHR stated that the individuals subject to this treatment had been involved in protests over disappearances, land/environmental rights or commemoration of war victims and were believed to be previously involved or linked with the LTTE.[35]
[34] UN Human Rights Council, Situation of Human Rights in Sri Lanka: Comprehensive report of the United Nations Commissioner for Human Rights, 57^th sess, UN Doc A/HRC/57/19 (22 August 2024) [27]-[30].
[35] Ibid [27].
The United States Department of State (USDOS) also observed that credible reports indicate that torture and excessive use of force by police, including to extract confessions, remained ‘endemic’ in 2023.[36] DFAT confirms this assessment, noting that while it is difficult to determine the exact prevalence of torture, multiple domestic and international sources consider it to be common.[37]
[36] USDOS, 2023 Country Reports on Human Rights Practices – Sri Lanka (22 April 2024).
[37] DFAT, Country Information Report Sri Lanka (2 May 2024) [4.29].
While the applicant departed legally on his own passport in 2006, he has not returned since that time and does not have a current passport. Country information indicates that he would be questioned on arrival in Sri Lanka. According to DFAT:
On arrival at Colombo Airport, failed asylum seekers go through immigration, where their identities are verified. For returnees with a valid passport, this process is swift; for those returning on a temporary travel document, the process will take longer.[38]
Depending on the circumstances of their departure from Sri Lanka (i.e. if they departed legally or illegally), personal history (i.e. if they have a criminal background in Sri Lanka) and whether they are travelling on temporary travel documents, failed asylum seekers may face further questioning from Sri Lankan Immigration, the SIS, Navy Intelligence (SLNI) and the police (CID). These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters.[39]
[38] Ibid [5.38].
[39] Ibid [5.39].
Based on the applicant’s accepted profile, including that he is already of interest to the Sri Lankan intelligence and police in relation to his past LTTE involvement and that he has not previously undergone rehabilitation, the Tribunal finds that he may be identified and subject to questioning by other agencies and/or prolonged detention on arrival to the airport through this initial process.
Even if permitted to return to Jaffna where his family resides, the Tribunal considers there to be a real chance he will face ongoing harassment and detention for the cumulative reasons of his family involvement in the LTTE, his own extensive past history of LTTE involvement, and his participation in Tamil protests and memorialisation events in Australia. While the Tribunal cannot know for certain whether the Sri Lankan authorities are aware of the applicant’s activities in Australia over the last four or five years, the possibility cannot be dismissed as remote in light of the country information indicating that the Sri Lankan government monitors closely for perceived threats to the Sri Lankan state.[40]
[40] KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 00130 (IAC) at [475].
The Tribunal also accepts that if he is detained or questioned for longer than ordinary processing periods – whether upon arrival or subsequently – there is a real chance he will suffer serious harm including torture. Central to this assessment is the above country information suggesting that torture by the police and security forces is prevalent and that there is a higher level of monitoring of people who served in the LTTE’s political and intelligence wings or were involved in raising funds for the LTTE, and people who have attended demonstrations and war-related commemorative events overseas, as was the applicant.
The Tribunal is therefore satisfied that there is a real chance that the applicant will face harm from the Sri Lankan authorities if he returns to Sri Lanka, either now or in the reasonably foreseeable future. The feared harm involves systematic and discriminatory conduct and rises to the level of serious harm as set out in s 5J(5) because it involves threats to his life or liberty and significant physical harassment or ill-treatment.
The Tribunal finds, for the purposes of s 5J(1)(a), that the essential and significant reasons for this harm are the applicant’s political opinion and Tamil ethnicity. As the Sri Lankan government is the perpetrator of the harm feared by the applicant and it maintains effective control throughout the country, the Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka as required by s 5J(1)(c).
The Tribunal also finds, for the same reason, that effective state protection will not be available to the applicant for the purposes of s 5LA(2).
The Tribunal accepts that the applicant’s political opinion is fundamental to his identity and conscience and that his Tamil ethnicity is an innate and immutable characteristic. Pursuant to s 5J(3) of the Act he cannot be required to modify his behaviour to avoid a risk of persecution where to do so would require him to alter or conceal these characteristics.
There is no evidence to suggest that the applicant has any right to enter and reside in a third country and the Tribunal finds that s 36(3) does not apply in the applicant’s circumstances.
Accordingly the Tribunal accepts that the applicant has a well-founded fear of persecution in Sri Lanka for reason of his political opinion and Tamil ethnicity. It follows that he meets the definition of a ‘refugee’ in s 5H of the Act .
CONCLUSION
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.
Adrienne Anderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4413

13 September 2024

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice