1907350 (Refugee) - [2024] ARTA 496

1907350 (Refugee) [2024] ARTA 496 (22 October 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 1907350
Tribunal:General Member S Durvasula
Date:22 October 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 22 October 2024 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – member of proscribed organisation – attacked, abducted and detained, then released after bribe – fear of harm from specified politicians – participation in protests in Australia – recent inquiries by intelligence service to family members – failed asylum seeker, economic conditions and criminal gangs – inconsistent claims and evidence – past membership accepted but involvement now ceased – later work for former political rival – multiple departures and returns – no application for protection in another country – passage of time – country information – no recent attacks, party now mainstream and president belongs to it – outcome of recent general election uncertain – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (6), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 53
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 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 14 May 2015. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 23 August 2024 and 1 October 2024 to give evidence and present arguments. The Tribunal also took oral evidence in-person from the applicant’s sister and oral evidence by telephone from the applicant’s brother. The Tribunal was assisted by an interpreter in the Sinhalese and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance, if the applicant returns to Sri Lanka, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
Evidence before the Department
The applicant is a [Age]-year-old Sri Lankan national who was born in [Village], [Town], Sri Lanka (located in the south of the country, about 14km from [City]).
In his protection visa application and in a statutory declaration declared on 14 May 2015, the applicant provides the following biographical details:
·     He is of Sinhalese ethnicity and a Buddhist.
·     He is married and has 2 children. He got married on [Date].
·     His father, one sister and one brother live in Sri Lanka. His mother is deceased. [Some siblings] live in Australia and [one] lives in [Country 1].
·     In Sri Lanka, he lived [Village], [Town]. His wife and 2 children continue to live at the same address.
·     He completed college education in Galle.
·     He lived and worked in [Location], [Country 2] as [an occupation 1] and manager between December 1989 and October 2014. His most recent job was as an assistant [manager] for [Employer].
·     He returned to Sri Lanka for a holiday in March 1993, March to August 1995 and in November/December 2000.
·     He travelled to [Country 3] on 5 occasions between 2008 and 2014 for work.
The applicant returned to his hometown in Sri Lanka in October 2014. He was granted a Subclass 600 visitor visa on 23 January 2015 and arrived in Australia on a Subclass 600 visitor visa [in] February 2015. He applied for a protection visa on 14 May 2015. He has not since departed Australia.
In his protection visa application and in statutory declarations declared on 14 May 2015 and 8 March 2018, the applicant makes the following protection visa claims:
a)    He left Sri Lanka as his life was in danger. He narrowly escaped 2 murder attempts in Sri Lanka and was severely injured once.
b)    He has been an activist in the Janatha Vimukthi Peramuna (JVP), also known as the People Liberation Front, since [Year]. He became a party member in 1988 when the party was a proscribed organisation. He was involved in building up the party’s processes after it was crushed by the state machinery and 60,000 people were killed.
c)    In November 1989, a vigilante group from the People’s Revolutionary Army (PRA) and army intelligence abducted him from Kandy and detained him at the Batalanda detention camp. He was blindfolded and ill-treated. He managed to escape by bribing [a PRA leader].
d)    While he was detained, he collected information on killings by the PRA which was led by the then Minister Rajitha Senarathne and the army intelligence unit led by the late General Janaka Perera.
e)    In December 1989 he went to [Country 2] and started political activities against the existing United National Party (UNP) from overseas. These activities were led by [Mr A] who later became [a] JVP party leader.
f)     The applicant worked in internal committees, fundraising activities and human rights action groups which gathered information about cruelty against the JVP. He gathered information on the 1988-89 cruelties, such as killings, abductions, mass burials, disappearances and corruption. He worked closely with [Organisation].
g)    In [Year], he went to Sri Lanka for his wedding. He had to move his wedding venue from [Town] to Colombo and leave Sri Lanka in the middle of his honeymoon due to fear.
h)    In 1994 his wife, who was then [an occupation 2], was transferred to a remote area called [Area]. He claims this was due to political revenge.
i)   With the death of President Premadasa and government changes, the threats to JVP activists eased and the JVP became part of the mainstream of politics. However, this changed when Mahinda Rajapaksa came to power.
j)   In January 2012, JVP members were shot at during a public meeting. The applicant gave information about these killings to online journalists who were both former JVP members.
k)    When the applicant was in Sri Lanka in 2012, government thugs abducted and attacked him. His [body parts] were broken. The JVP helped him return safely to [Country 2]. Some of the online media covered the incident. Later, the applicant learned that the attack was organised by [Mr B], a powerful political figure in Rajapaksa’s stronghold in the [district].
l)   The applicant’s family was continuously harassed by government thugs after he left the country and he had to pay some money to stop this.
m)   During the 2015 presidential election, the JVP party directed him to return to Sri Lanka to help with campaigning. After the election, Mr Rajapaksa was defeated and [Mr B] aligned with Mr Senarathne.
n)    On 15 January 2015, the applicant was on his way to [Town] Junction to get some medicine for his sick child. A white van followed him and the applicant was bashed, blindfolded and taken to the van. He realised this was carried out by [Mr B]’s people as the applicant had exposed some of Mr Senarathne’s secret dealings. For some reason, the attackers abandoned him by the side of the road and attempted to kill him with numerous shots. He escaped with minor injuries.
o)    He tried to complain to the [Location] police station, assisted by a local lawyer, [Mr C], but his complaint was not recorded.
p)    [Mr C] helped him leave the country from the airport. Two friends (JVP members), who assisted him were later killed near [Town] Junction.
q)    His family has received threats from [Mr B]’s people and has been subjected to discrimination. He had to bring his family to Thailand to meet them. On 12 February 2018, [Mr D], a close ally of [Mr B] and former ‘Blue Brigade’ member, threatened the applicant’s father and asked about his whereabouts.
r)     He believes that if he returns to Sri Lanka he will be persecuted or even killed.
s)    He was receiving death threats from Mr Senarathne and one of his associates, [Mr B]. Both were accused of political violence, human rights abuses and corruption. He still possesses evidence against them over corruption and atrocities which will be useful if there is a trial against them.
t)     Although he worked in [Country 2], his work contract was not extended and he did not have permanent residency there or a basis to stay on humanitarian grounds. Although he visited [Country 3] several times, it was on a work-related visa. Until 2015, he wanted to return to Sri Lanka.
The applicant was interviewed by the delegate on 19 May 2018. The Tribunal has listened to a recording of that interview.
With the visa application, the applicant provided the following additional evidence:
·     A letter from [Mr E], [Country 2] Branch Secretary of the [Country 2] Division of the People’s Liberation Front, dated 10 June 2015, describing the applicant’s activities for the JVP in [Country 2].
·     Letter from [Mr A], ‘socialist activist’ residing in Battaramulla, Sri Lanka, dated 5 June 2015. This states the applicant was ‘one of the survivors of the 1988-89 suppression’. The applicant had informed him that he left Sri Lanka to protect his life and had applied for asylum in Australia. He speaks generally of the situation in Sri Lanka.
·     Letter from [Mr C], attorney and old school friend of the applicant, dated 5 June 2015. He repeats the applicant’s claims that he was a JVP member; he was abducted by a vigilante group and the army in 1989; he witnessed mass killings and torture; and he believed Mr Senarathne and [Mr B] were behind the harassment and death threats to the applicant. [Mr C] states the applicant contacted him on the morning of 16 January 2015 and told him he had been subjected to an abduction and had received injuries and bruises. [Mr C] helped him make a complaint at the [Location] police station but it was not accepted.
·     Letters signed by the applicant’s father dated 22 October 2015 and 25 February 2018, stating that since the applicant left for Australia, unknown characters had come to his residence at odd hours in search of him and to question his whereabouts. This included one person who came on the night of 12 February 2018 and made inquiries about the applicant in a ‘threatening manner’.
·     Affidavit by the applicant’s wife dated 6 June 2015 repeating the applicant’s claims. She mentions the incident on 15 January 2015 and states she was also present when the applicant was abducted and when he complained to the police.
·     Translated letters from the applicant’s wife to the applicant dated 18 May 2000 and
6 December 1994, referring to people looking for his whereabouts.
·     Medical certificate dated 15 January 2012, from Sri Lanka stating the applicant had sought treatment for a fracture and a bruise of the [body part 1] on that date. An X-ray report dated 27 May 2015 from Australia states the applicant has an old un-united fracture in his [body part 2].
·     Medical certificate from Sri Lanka, dated 15 September 2015, stating that the applicant had been diagnosed with ‘insomniac depression’ and had sought treatment from 16 October 2014 to 14 February 2015.
·     A medical certificate from Australia dated 28 October 2015, stating that the applicant is suffering from anxiety and depression.
Evidence before the Tribunal
In a statutory declaration signed on 18 August 2024, the applicant states that:
a)    He fears harm due to his: political opinion supporting the JVP; his intention to seek justice for the torture victims of the [Location] Torture cells, his political opinion against former President Ranil Wickremesinghe and his UNP party; and because he will be a failed asylum seeker. He fears harm from the UNP, Sri Lanka Podujana Peramuna (SLPP) (the party of the Rajapaksas) and the Sri Lankan authorities, including the army.
b)    Rajitha Senarathne and his son have the power, connections and a criminal network to take revenge against people who they consider as potential threats or enemies. For example, in 2021, they were arrested in connection with the abduction of a journalist.
c)    The applicant returned to Sri Lanka in 2015 as there was a change of government and he hoped there would be positive changes.
d)    Despite facing threats, intimidation and harassment, he did not seek protection in [Country 3]. After he came to Australia in February 2015, he hoped to return to Sri Lanka because he wanted to continue his involvement in politics. However, he decided to seek protection in Australia due to threats and escalation of violence against the JVP and Frontline Socialist Party (FSP) members.
e)    He continues to have close and direct association and links with JVP activists and FSP activists and financially supports the JVP. In 2022 he participated in Aragalaya protests in Sydney to express his opinion against the Rajapaksa regime. He believes that the Sri Lankan High Commission employs spies to monitor the activities of Sri Lankans who express their views against Sri Lankan authorities.
f)     He has membership of ‘SLVlog and Satahan Radio’ and will continue to express his opinion against ongoing human rights violations and abuses in Sri Lanka and against the UNP and former President Wickremesinghe.
The applicant also provided:
a) Statutory declarations from his brother ([Mr F]) and sister ([Ms G]), who live in Australia. They state they are aware the applicant was actively participating in left wing politics since [Year] and witnessed atrocities at the Batalanda camp. When the brothers returned to Sri Lanka in May 2023 for their father’s funeral, a group of unidentified people forcefully came to the funeral house and enquired about the applicant. They later found out they were attached to the Sri Lankan Intelligence Service and 2 were sons of ex-police officer [Mr H].
b) A statement from the applicant’s wife, translated from Sinhalese, repeating the applicant’s claims. She states that on 12 May 2023, a group of people went to her son’s university and enquired about his father’s whereabouts. In May 2023, a group of thugs came to the funeral house to ask if the applicant had attended the funeral. In May 2024, another group of people came and enquired about the applicant. Groups of people constantly came to see if her husband has arrived in Australia.
First hearing – 23 August 2024
The applicant confirmed his biographical details as set out above. He added that his father had passed away in 2023. His wife now lives at the family property in [Village] and his stepmother lives in the adjacent property. He has 2 children – the eldest son is working in Colombo and the second son is studying at university in a nearby town. His wife [works] in the local area.
When asked why he left Sri Lanka and why he does not want to return, the applicant stated he fears harm due to his political opinion. If he returns to Sri Lanka, he will be taken from the airport and killed. He referred to 2 incidents in Sri Lanka where he experienced harm – once in 2012 and once in 2015. When asked who he fears, the applicant stated that he fears former President Wickremesinghe will personally harm him, along with other political figures – [Mr B] and Mr Seranathne.
Claims of past harm in Sri Lanka
The applicant gave evidence that he went back to Sri Lanka about 5 times when he was working in [Country 2]. He returned in [Year] (to get married), 1995, 2000, 2012 and 2015. During these visits he stayed at his hometown in [Village] with his wife and children.

The Tribunal asked the applicant why he kept returning to Sri Lanka despite claiming that he feared harm. The Tribunal discussed with the applicant that his regular visits to Sri Lanka, may indicate that he did not fear harm there. The applicant stated he returned as his party called him to help and he wanted to see his family. He once asked his family to meet him in [Country 4] as he did not want to go to Sri Lanka.
The Tribunal noted that the applicant had travelled to [Country 3] several times. His last visit there was in 2014 and his [Country 3] visa expired in March 2015. The Tribunal asked the applicant why he did not seek protection in [Country 3]. His failure to do so may raise concerns that he did not fear harm in Sri Lanka. The applicant responded that he went to [Country 3] for work and had a specific visa only for work. He did not do any research about seeking protection there. He was always thinking that he would return to his family in Sri Lanka.
2012 incident
In 2012, when the applicant was in Sri Lanka, some people came to a JVP meeting and killed 2 people. The party told him to find out information about the 2 people who were killed. The applicant found out that [Mr B] was the mayor in that area. He gave a report to the party and they published that information. On 17 June 2012, [Mr B]’s thugs came to his home area and broke his [body part 1]. The Tribunal noted that the medical certificate he had presented to the Department stated he had suffered a broken [body part 1] on 15 January 2012. The applicant could not explain the inconsistency in the dates. After that incident, he hid near Colombo and occasionally went back to his home village.
January 2015 incident
The Tribunal asked the applicant why he returned to Sri Lanka in October 2014, if he feared harm, particularly following the incident in 2012. The applicant stated that his work contract in [Country 2] had ended. His employer had told him that his work visa would not be renewed. He returned as [Mr B] asked the applicant to help with the election campaign and work against Mr Seranathne. The Tribunal discussed with the applicant that it appeared he had provided contradictory evidence about his motives for returning to Sri Lanka in 2014. He had stated in his earlier statutory declarations of 2015 and 2018, that he returned to Sri Lanka as he was directed by the JVP to help with election campaigning. He was now stating he went back to personally assist [Mr B] who had previously been an enemy. The applicant confirmed that he did not work for the JVP after October 2014.
The Tribunal discussed with the applicant its concerns that he returned to Sri Lanka to help someone whom he had previously feared and whom he claimed was responsible for beating him in 2012. The applicant stated that he trusted [Mr B] as he had promised the applicant he would not be harmed if he helped him work against Mr Seranathne. He had the fear, but he still returned to Sri Lanka as he wanted to live with his family. When he returned to Sri Lanka, it was his intention to stay there permanently. The applicant lived with his wife in his home village during this time.
The Tribunal asked the applicant for further information about the January 2015 incident where he claimed he was abducted and beaten. The applicant stated he was walking with his [Age]-year-old son on the side of the road to a nearby town to a medical clinic. A vehicle came up and took him away. Some people beat him and he had minor injuries. A short time later, they stopped the vehicle, spoke to someone whom they called ‘sir’ and kicked him out of the vehicle. They fired shots at him as they drove away, but missed. His son ran away. He does not know for sure, but he guessed that [Mr B] and his people were responsible for the incident. He tried to make a complaint to the police but they would not accept the complaint. After this incident, the applicant decided he had no life in Sri Lanka. He decided to apply for a visa to Australia. His brother-in-law helped him to apply for the visa. In the meantime, he stayed in different places until he left Sri Lanka.
The Tribunal discussed with the applicant its concerns about his account of this incident. The Tribunal asked the applicant why the perpetrators had let him go if they intended to kill him. The applicant stated that things happen like that in Sri Lanka. The Tribunal asked the applicant why [Mr B] would have tried to abduct and kill him if the applicant had previously been helping him in the election campaign. The applicant stated that after the election, [Mr B] switched alliances and became friends with Mr Seranathne. As the applicant had evidence about the Batalanda killings against Mr Seranathne and [Mr B], he believes he was targeted.
The applicant confirmed that his wife was not with him when the incident occurred. The Tribunal raised concerns that in a statement submitted with the visa application, dated

6 June 2015, his wife had stated that ‘we were taking our son, who was unwell, to the doctor’, indicating that she was also present. The applicant stated that only he and his son were present.
At the hearing, the applicant told the Tribunal that he was no longer involved with, or active in, the JVP. He stopped following the JVP after he came to Australia and the JVP became a mainstream opposition party. He would not support the JVP if he returned to Sri Lanka. The Tribunal discussed with the applicant that this contradicted the content of his most recent statutory declaration dated 18 August 2024, where he states he fears harm ‘due to my active political opinion supporting the JVP and my involvement and political activities promoting the political ideologies of the JVP’. The applicant stated this was no longer true and he had renounced these claims.
After the first hearing, the applicant provided a statutory declaration dated 13 September 2024, essentially repeating the claims made in his statutory declaration dated 18 August 2024.
Evidence of applicant’s sister
In a statutory declaration dated 18 August 2024, the applicant’s sister repeats the applicant’s claims that he was a JVP activist and he faced threats to his life in 1989. She ‘has learnt’ that he escaped from murder attempts in 2015 and came to Australia to seek asylum. Her parents and his family in Sri Lanka continue to face harassment and threats from ‘political goons’. In her last 2 visits to attend to her father’s last rites, ‘personnel from authorities’ were seeking her brother.
At the applicant’s request, the Tribunal took oral evidence in-person from the applicant’s sister. She stated that at her father’s funeral and during the first anniversary of his death, a bunch of people were there. They were going through the rooms in her father’s house and were looking for something. She did not know who these people were – they were tough thugs and were asking about the applicant.
Second hearing – 1 October 2024
Evidence of applicant’s brother
In a statutory declaration dated 18 August 2024, the applicant’s brother repeats the applicant’s claims that he was a JVP activist, was abducted twice by Sri Lankan security forces and a pro-government paramilitary group and left Sri Lanka in 2015 as he feared for his safety. He also states, ‘my family repeatedly informed me that after my brother left Sri Lanka, he was actively sought by both the Sri Lankan defence authorities and unidentified political groups. Furthermore, his wife and my parents were subjected to harassment’. In May 2023, during their father’s funeral, a group of unidentified people forcefully came to the funeral house and enquired about the applicant. They later found out they were attached to the Sri Lankan Intelligence Service and 2 were sons of ex-police officer [Mr H].
At the applicant’s request, the Tribunal took evidence by telephone from the applicant’s brother. The applicant’s brother stated that he came to Australia in 2000. He rarely communicated with the applicant before he came to Australia and came to know about the applicant’s situation through speaking to their parents. His parents told him that from time to time, uniformed people came to look for the applicant. He does not know when this happened – it may have been 2018/2019. Some unknown people came to his father’s funeral. One person asked him if the applicant was coming to the funeral, stating that they had previously worked in politics together. A family friend told them that one of the people who came may have been the son of former police officer, [Mr H].
At the applicant’s request, the Tribunal also attempted to take evidence from the applicant’s wife in Sri Lanka by telephone. The Tribunal attempted to call the number for his wife provided by the applicant 9 times over 45 minutes. On one attempt, the witness answered but was unable to hear. On another attempt, the witness was accepted into a video call but was unable to turn on the video or microphone. For the remaining 7 attempts, there was no answer.
The applicant asked the Tribunal to attempt to call his wife on another day. The Tribunal has considered his request but has declined to schedule another hearing to contact his wife. The Tribunal has made reasonable attempts to contact the applicant’s wife, being 9 separate phone calls over the course of a 45 minute period. The applicant’s wife was on notice that the Tribunal would attempt to contact her on the day of the second hearing. Under s 53 of the Administrative Review Tribunal Act 2024, the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues it considers. The Tribunal has therefore considered the written statements of the applicant’s wife without making further attempts to obtain oral evidence from her.
At the second hearing, the applicant again clarified that he previously supported the JVP but he does not support the current leader. He would not support the JVP if he returned to Sri Lanka. He confirmed that he stopped working for the JVP in October 2014.
The Tribunal discussed with the applicant, the outcome of the September 2024 presidential election in Sri Lanka and the potential impact on his claims. The Tribunal also put to the applicant, information under s 424AA of the Act[1], relating to particular political figures in Sri Lanka. This information, and the applicant’s response is discussed further below in the Tribunal’s findings.
REASONS AND FINDINGS
[1] As it was in force at the time of the hearing. On 14 October 2024, s 424AA was repealed. The relevant provision is now s 359A of the Act.
Country of nationality
The applicant has provided a copy of his passport to the Department and Tribunal which shows he is a Sri Lankan citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of Sri Lanka and has assessed his claims on this basis.
Does the applicant satisfy the refugee criterion for protection?
Findings on claims of past harm
The applicant claims he was abducted in 1989 while he was active in the JVP and he witnessed killings and torture at the Batalanda detention camp. Based on the applicant’s evidence at the hearing and at the Departmental interview, his written statements and the supporting statements from [Mr E], [Mr A] and [Mr C], the Tribunal accepts that the applicant was active in the JVP in the 1980s. The Tribunal accepts that in [1989], he was abducted, detained and ill-treated at the Batalanda camp and that he witnessed other people being killed and tortured. Independent sources indicate that over 50,000 people were killed during the armed insurrection in southern Sri Lanka in the 1970s and 1980s and it is therefore likely that the applicant was impacted by these events.[2] The Tribunal accepts that some threats of harm to him may have continued into the early 1990s, including when he returned to Sri Lanka for his wedding in [Year]. The Tribunal accepts that he remained active in the JVP when he worked in [Country 2]. The Tribunal accepts, based on the applicant’s evidence at the hearing, that he ceased his involvement with the JVP before he returned to Sri Lanka in October 2014.
[2] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka (2 May 2024) at report 3.58 (DFAT report); Lansford T and others, Political Handbook of the World 2022-2023, CQ Press (2023) at
For the reasons set out below, the Tribunal does not accept the applicant’s other claims of past harm in Sri Lanka.
First, the Tribunal finds the applicant returned to Sri Lanka 5 times between [Year] and 2015, despite his claim that he feared harm. The Tribunal has considered the applicant’s claims that when he was in Sri Lanka, he could not always stay in one place and had to move around. The Tribunal does not accept that this explains why the applicant would continue to return to Sri Lanka on multiple occasions. His own evidence was that he mostly stayed with his wife and children in his home [village].
Second, the Tribunal finds the applicant travelled to [Country 3] on at least 5 occasions for work between 2008 and 2014, but he did not seek protection in that country, despite his claim that he feared returning to Sri Lanka. The Tribunal has considered the applicant’s explanation that he was only in [Country 3] on a work visa. This does not explain, to the Tribunal’s satisfaction, why he did not at least enquire about seeking protection in that country, given that [Country 3] is a party to the 1951 Refugee Convention. The applicant also stated that he did not think of seeking protection in [Country 3] as he always thought he would return to Sri Lanka permanently. This evidence in itself demonstrates that the applicant did not fear harm in returning to Sri Lanka.
Third, in relation to the 2012 incident, the Tribunal accepts that the applicant was helping the JVP collect information about 2 people who had been killed at a JVP meeting. The Tribunal accepts the applicant suffered a fracture and bruising of his [body part 1] on 15 January 2012, based on the medical certificate from Sri Lanka dated the same day and the X-ray report dated 27 May 2015. The Tribunal does not accept, however, that this injury was due to the applicant being beaten by thugs associated with the government or [Mr B]. At the hearing, the applicant stated that the beating occurred in June 2012, which was after the date of the medical certificate. This inconsistency leads the Tribunal to not accept the applicant’s claims that he suffered a broken [body part 1] following a beating by government thugs in January 2012.
Fourth, the applicant returned to Sri Lanka in October 2014, despite his claim that he feared harm because he had been beaten by thugs associated with [Mr B] in 2012. Furthermore, he claims he returned to Sri Lanka to help [Mr B]. This was the very person he claimed had harmed him in 2012 and would continue to harm him, because the applicant held evidence against him. The applicant’s willingness to return to Sri Lanka to help [Mr B], leads the Tribunal to not accept the applicant’s claim that he was beaten by [Mr B]’s thugs in 2012. It also leads the Tribunal to not accept the applicant’s claims that he feared harm when he left Sri Lanka in 2012 or that he feared harm when he returned in October 2014.
Fifth, the Tribunal finds the applicant has provided inconsistent evidence about his motivations for returning to Sri Lanka in 2014. He stated in his written statements to the Department that he returned to assist the JVP with election campaigning and because he was directed by the party to do so. At the hearing, the applicant stated he was no longer involved with the JVP after October 2014, and he returned to personally assist [Mr B]. These inconsistencies lead the Tribunal to doubt that the applicant’s motivation for returning to Sri Lanka in October 2014 was for the purpose of political campaigning, given his own evidence that he had stopped his involvement with the JVP at that time. The Tribunal finds the applicant returned to Sri Lanka as his work contract in [Country 2] had ended and his employer had told him his visa would not be renewed. The Tribunal does not accept that he returned for the purpose of political campaigning – either for the JVP or for [Mr B].
Sixth, the Tribunal does not accept the applicant’s account of the incident in January 2015 which he claims led to his last departure from Sri Lanka. As discussed with the applicant at the hearing, the Tribunal finds it is not plausible that if the perpetrators had intended to kill him, that they would abduct him and let him go immediately. The Tribunal also finds it is not credible that [Mr B] would seek to harm the applicant if he had specifically asked the applicant to assist him with election campaigning.
The Tribunal has considered the applicant’s explanation that [Mr B] switched alliances after the election and sought to harm the applicant due to the evidence he held about the Batalanda killings. The Tribunal does not accept this explanation. At the hearing, the Tribunal discussed with the applicant that the killings at Batalanda had already been

well-documented and publicised.[3] A Commission of Inquiry had been conducted and a report was published in 2000.[4] No action had been taken against the perpetrators despite the findings in the report.[5] In these circumstances, the Tribunal finds it is not credible that [Mr B] would seek to harm the applicant because of what he had witnessed 25 years earlier, when it was already documented and published.
[3] ‘Ranil Wickremesinghe – “The Butcher of Batalanda” – Call for UN Investigation’,
[4] Report of the Commission of Inquiry into the Establishment and Maintenance of Places of Unlawful Detention and Torture Chambers at the Batalanda Housing Scheme, Department of Government Printing Sri Lanka (2000) accessed 3 September 2024.
[5] International Commission of Jurists, Post-War Justice in Sri Lanka – Rule of Law, The Criminal Justice System and Commissions of Inquiry, Kishali Pinto-Jayawardena (January 2010), accessed 3 September 2024.
Seventh, the Tribunal does not accept the applicant’s wife was transferred to a remote area in [Year] because of political retribution against the applicant. The Tribunal does not have sufficient evidence to support the claim that the applicant’s past political activity with the JVP and his wife’s employment were connected.
Statements from third parties
The Tribunal has considered the statements from third parties in relation to the applicant’s claims of past harm. [Mr A] repeats what the applicant had told him and provides general information about the situation in Sri Lanka in 2015. The Tribunal gives his statement no weight.
[Mr C] did not witness the claimed beating and abduction in January 2015 and only repeats what the applicant has told him. His statement does not overcome the Tribunal’s other concerns about the credibility of the applicant’s evidence as set out above.
The applicant’s father, brother and sister did not directly witness any of the claimed harm against the applicant and repeat the applicant’s claims in general terms. His brother and sister state that they only indirectly became aware of the applicant’s political activities and the claimed harm against him after he left Sri Lanka. The Tribunal therefore gives these statements no weight.
The applicant’s wife states she was present when the applicant was abducted in January 2015, but this contradicts the applicant’s claims that his wife was not there at the time. When the Tribunal raised the contradiction with the applicant at the hearing, he reiterated that his wife was not present at the time. The Tribunal considers that as the applicant’s wife has an interest in the outcome of the visa application, her statements and letters are self-serving and simply repeat the applicant’s claims. The Tribunal therefore gives them no weight. In any case, these statements and letters do not overcome the Tribunal’s other concerns about the credibility of the applicant’s evidence as set out above.

In summary, the Tribunal finds that the written statements do not overcome the Tribunal’s concerns about the credibility of the applicant’s evidence regarding his claims of past harm.
For the reasons set out above, the Tribunal does not accept that the applicant has given a credible account of the past harm he experienced in Sri Lanka and of the reasons why he left Sri Lanka in 2015. The Tribunal does not accept he was beaten and injured by government thugs or thugs working for [Mr B] in 2012. The Tribunal does not accept the injuries to the applicant’s [body part 1] on 15 January 2012 were caused by government thugs or thugs working for [Mr B]. The Tribunal does not accept the applicant was abducted and harmed in January 2015 by thugs working for [Mr B] or Mr Seranathne. The Tribunal does not accept that the applicant had to pay money to stop people from harassing his family. The Tribunal does not accept that the applicant feared harm when he left

Sri Lanka in 2015.
Claims of ongoing threats to the applicant and his family
At the hearing, the Tribunal asked the applicant about his claim that people continued coming to his home in Sri Lanka to ask about him and to threaten him and his family after he had left Sri Lanka. When asked who comes to threaten him and ask about him, the applicant stated he does not know – they are unknown people – one was possibly the son of former police officer [Mr H]. When asked how many times they have come, the applicant stated they used to come to the house a lot and ask for money from his wife and his father (when his father was alive). When asked why these people kept asking about his whereabouts over several years if he was not there, the applicant stated they had not been often since he had moved to Australia. They asked for money on one or 2 occasions, 6 or 7 years ago, but they have not approached his family or asked for money since. They may have thought he and his wife got divorced.
When asked if these people have harmed his wife or anyone else in his family, the applicant stated that they had not. His wife was once moved to a difficult area for her [job]. The applicant claimed this was done as punishment to him. When asked why his family had not moved to another area if they feared harassment or other harm, the applicant stated that his wife did not move as she preferred to be living close to his parents. The people had not approached his other siblings in Sri Lanka.
He understands the last time the people came was in May 2023 when it was his father’s funeral and again in May 2024, for the first anniversary rites following his father’s death. When asked how he knew these people were there, the applicant stated that he was not sure as he was not there. When asked about their motives for asking about the applicant, the applicant stated that he has all the information about Batalanda. They want to find and kill him and destroy all the evidence.
The Tribunal has considered the applicant’s claims that unknown people have come to his family’s home to ask his family for money and ask about his whereabouts. The Tribunal does not accept the applicant’s claims for the reasons set out below.
First, the applicant’s wife, children and father (when he was alive) remained in the same house for several years and have not sought to relocate. The applicant’s evidence was that these unknown people have not sought to harm his family, even though he claims they have been looking for him for several years and seek to harm him. The Tribunal considers that if these unknown people had wanted to harm the applicant, they may have also threatened his family.
Second, the Tribunal finds the applicant’s evidence about the people he claimed had approached his family was vague and lacking in detail. He could not provide any information about who these people were. He could only speculate they were connected to a former police chief.
Third, the written statements from his family members indicated that these threats were frequent and ongoing. However this contradicts the applicant’s evidence that the visits were far less frequent. He stated that since he had moved to Australia, they had only approached his family once or twice since 2015 to ask for money and later at his father’s funeral and first anniversary rites. Therefore, the Tribunal does not accept there were ongoing approaches and threats to the applicant and his family.
Fourth, the Tribunal does not accept that these unknown people had any particular motive or incentive for asking about the applicant’s whereabouts. The applicant claims they are after him because of the information he has about the Batalanda killings. He did not indicate they were interested in him for any other reason. As found above, the killings at Batalanda have already been well-documented and publicised and no action has been taken against the perpetrators despite findings in a Commission of Inquiry. In these circumstances, it is not credible that unknown people would seek to harm the applicant because he was seeking to publicise events that occurred 35 years ago in 1989 and were already publicly known.
Consideration of third party statements and evidence of witnesses
The Tribunal has considered the written and oral evidence from the applicant’s brother and sister and the written statements from the applicant’s wife and his father (now deceased) regarding the claimed ongoing threats. The Tribunal finds the evidence in the statements and the oral evidence of the applicant’s sister and brother to be vague and lacking in detail. They refer generally to ‘unidentified people’, ‘thugs’, ‘unknown people’ or people in uniform looking for the applicant. The Tribunal accepts that while some unidentified people may have been present at the applicant’s father’s funeral, the Tribunal does not accept, based on the evidence provided, that they sought to harm the applicant or his family. In other aspects, the written statements and oral evidence repeat what the applicant has told these family members or repeat the applicant’s claims. The Tribunal also places less weight on the statements and oral evidence from the applicant’s family members, given that they have an interest in supporting the applicant’s claims and are not objective third parties. In addition, their evidence does not overcome the Tribunal’s concerns about other aspects of the applicant’s evidence, as set out above.
For the reasons set out above, the Tribunal does not accept the applicant’s claim that unknown people or thugs have approached his family to ask about his whereabouts or seek to harm him, or that they have sought to harm his family.
Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Sri Lanka?
Having considered the applicant’s claims of past harm, the Tribunal has considered whether the applicant has a well-founded fear of persecution in the reasonably foreseeable future, if he returns to Sri Lanka.
Fear of harm due to political opinion – exposing Batalanda camp atrocities
The applicant claims to fear harm due to his intention to expose the killings and torture he witnessed at the Batalanda camp in 1989. As stated above, the Tribunal has accepted that the applicant was active in the JVP in the 1980s, that he was abducted, detained and

ill-treated at the Batalanda camp and that he witnessed other people being killed and tortured. These events happened 35 years ago. The Tribunal must therefore consider whether there is a real chance the applicant will face serious harm in the reasonably foreseeable future as a result of witnessing crimes at the Batalanda camp in 1989.
At the hearing, the applicant spoke of his intention to bring the perpetrators of the killings at Batalanda to justice and to expose their actions. As stated above, the Tribunal discussed with the applicant that the killings at Batalanda had already been well-documented and publicised. A Commission of Inquiry had been conducted and a report was published in 2000.[6] The applicant claimed that the report from that Commission had not been made publicly available, but the Tribunal finds it has been published on the internet. The Commission recommended that legal action be taken against former President Wickremesinghe and other political leaders, but no action had been taken to date. The Tribunal asked the applicant why former government figures would be interested in taking action against him for raising events which had occurred 35 years ago; had already been well-publicised; and for which no action had been taken against the alleged perpetrators. Further, after the JVP insurgency, the attention of the authorities had shifted the 26-year civil war against the Tamil separatist movement.
[6] See footnotes 2, 3 and 4 above.
The applicant stated that although it was not important to the government, it was important to him that the perpetrators be punished. He believes that if the UN Human Rights Commission starts investigating, the authorities would start mass killings. He had attended a Zoom meeting with the Batalanda victims organised by overseas journalists and provided some evidence calling for the former President to be punished. He had not written or published any articles himself or spoken at any meetings. He had followed some online radio stations and news websites (SLVlog and Satahan Radio) that were critical of the government. The Tribunal asked the applicant several times how he would express his political opinion if he returned to Sri Lanka. The applicant did not answer the question and stated that he could never return to Sri Lanka as he feared he would be killed.
The Tribunal accepts that the applicant holds a genuine and sincere belief that the perpetrators of the Batalanda atrocities should be brought to justice. The Tribunal accepts that if he returned to Sri Lanka he would continue to be interested in this issue and support any ongoing investigations into the issue by other bodies. The Tribunal does not accept, however, that the applicant would himself publicly express his opinion about the Batalanda camp if he returns to Sri Lanka.
The Tribunal finds that the applicant would not refrain from exercising his political opinion because he fears harm, but because he is simply not inclined to do so. The Tribunal finds the applicant has had ample opportunity to publicly express his political opinion about the Batalanda atrocities since has been in Australia for the past 9 years and in the [Number] years he lived in [Country 2], but he has not done so. At the hearing, the Tribunal gave the applicant the opportunity to explain how he would express his political opinion if he returned to Sri Lanka, but he declined to provide further information. His inaction in expressing his opinion, along with his disinterest in the JVP, demonstrates that he has been a passive observer since he has been in Australia. He has not been an activist as he claims. The Tribunal therefore does not accept that the applicant will need to modify his behaviour by altering his political beliefs, or concealing them, in order to avoid persecution: s 5J(3)(c)(iii).
As discussed with the applicant at the hearing, the events at Batalanda are well-documented and no action has been taken against the alleged perpetrators to date, despite previous commissions of inquiry. For example, Amnesty International reports that since 1991 there have been 9 commissions of inquiry to investigate enforced disappearances and a number of other human rights-related inquiries in Sri Lanka, including an inquiry into Batalanda. While most, if not all, of these commissions of inquiry identified alleged perpetrators, very few prosecutions for human rights violations have resulted.[7] DFAT also reports that there continues to be a lack of accountability for alleged war-era human rights violations, including high-profile murders and disappearances. More recently, the United Nations Commissioner for Human Rights has noted the unwillingness or inability of the State to prosecute perpetrators of crimes.[8] Therefore, the Tribunal finds that even if it accepted that the applicant would give information to human rights organisations and journalists, the alleged perpetrators would not perceive him to be a credible threat. The Tribunal does not accept that he would face harm in Sri Lanka for this reason.
[7]
[8] DFAT report at 2.62; United Nations High Commissioner for Human Rights, A/HRC/57/19: Situation of Human Rights in Sri Lanka – Comprehensive report of the United Nations High Commissioner for Human Rights - Advance unedited version (22 August 2024), , accessed 4 September 2024.
For the reasons set out above, the Tribunal finds there is no real chance the applicant will face serious harm if he returns to Sri Lanka, now or in the reasonably foreseeable future, for reasons of his political opinion or imputed political opinion, as a person who intends to support ongoing investigations into atrocities committed at Batalanda in 1989.
Fear of harm due to political opinion – supporter of the JVP
In his visa application and statutory declaration to the Tribunal, the applicant claims to fear harm if he returns to Sri Lanka due to his political opinion in supporting the JVP. The Tribunal accepts, based on the applicant’s evidence and the supporting statements from [Mr E], [Mr A] and [Mr C], that:
· the applicant was a member of the JVP when he lived in Sri Lanka in the 1980s; and
· the applicant continued working for the JVP when he worked in [Country 2] between 1989 and 2014.
Actual political opinion
Based on the applicant’s evidence at the hearing, the Tribunal finds the applicant is not a current member or supporter of the JVP and he would not support the JVP if he returned to Sri Lanka. The Tribunal finds the applicant is not a current JVP activist as he has claimed in his written statements and as claimed in the statements by third parties. He has renounced the previous claims made in his visa application and in his statutory declarations to the Tribunal. On this basis, the Tribunal finds the applicant would not express a political opinion supporting the JVP if he returned to Sri Lanka and the Tribunal finds there is no real chance the applicant will face serious harm for this reason.
Imputed political opinion
The Tribunal has considered whether the applicant would be imputed to have a political opinion supporting the JVP due to his past association with that party, and whether he would be harmed for that reason.
Information under s 424AA of the Act [9]
[9] As it was in force at the time of the hearing. On 14 October 2024, s 424AA was repealed. The relevant provision is now s 359A of the Act.
At the second hearing on 1 October 2024, the Tribunal put to the applicant, the particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review under s 424AA of the Act. The Tribunal explained why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review.
This information related to particular political figures in Sri Lanka. The information was that on 21 September 2024, there was a presidential election in Sri Lanka. Anura Kumara Dissanayake of the National People’s Power (NPP) won the election and is now the President. Mr Dissayanake gained the largest number of votes (42.31 per cent), ahead of the other 2 candidates. Former President Wickremesinghe came third and gained only 17.27 per cent of the vote.[10] The election was peaceful and widely considered to be free and fair. [11] Mr Dissayanake is also the leader of the JVP, which is the largest party in the NPP. Former president Wickremesinghe is no longer in office.
[10] ‘Presidential Election Results – 2024’, Electoral Commission of Sri Lanka (22 September 2024) accessed 18 October 2024; ‘All change – An upset in Sri Lanka propels an outsider into power’, The Economist (23 September 2024), accessed 18 October 2024; ‘Sri Lanka’s new president: Political outsider makes remarkable turnaround’, BBC (23 September 2024) accessed 18 October 2024.
[11] ‘International Expert Election Observation Mission (IEEOM) to the 2024 Presidential Election in Sri Lanka Interim Report’, Asian Network for Free Elections (24 September 2024), accessed 18 October 2024.
The Tribunal explained that this information may be relevant to affirming the decision under review as it indicated that the current President of Sri Lanka belonged to the JVP, the party the applicant had previously supported. Therefore, the applicant may not face a real chance of serious harm or real risk of significant harm if he returns to Sri Lanka, as he previously belonged to the same party as the current President. It also indicated that Mr Wickremesinghe was no longer in office and may have less power and influence. Therefore, the applicant may not face a real chance of serious harm or real risk of significant harm from Mr Wickremesinghe or his associates due to his previous involvement with the JVP. Overall, this information may mean that he does not meet one of the essential requirements to be a refugee or the complementary protection criteria.
The Tribunal advised the applicant that he may seek and be given additional time to comment on the information. The applicant stated that he did not want additional time. However, his representative asked for additional time to provide comments and the Tribunal granted additional time until 16 October 2024 to comment on the information.
The applicant commented at the hearing and in a statutory declaration dated 16 October 2024, that a general parliamentary election was due to be held in November 2024. At this election he predicted that President Dissanayake would lose power as he only had 42 per cent of the vote and Mr Wickremesinghe would return to power. All former ministers and parliamentarians will do their best to topple President Dissanayake from power. He predicts that when there is political and security chaos, the army will step in and target and hunt JVP members as the defence chief is a close confidant of the Rajapaksa family. He provided one media article from 2019 and one media article from 2022, which pre-date the 2024 election.
Findings on imputed political opinion
The Tribunal does not accept that the applicant would be imputed to have a political opinion supporting the JVP. The applicant left Sri Lanka in 2015, more than 9 years ago. He has not been active in the party since he has been in Australia.
The Tribunal does not accept, based on the independent country information, that being a past member of the JVP or having a past association with the JVP would result in harm to the applicant.
Prior to the September 2014 presidential election, DFAT and other sources reported that the JVP was one of the mainstream opposition parties in Sri Lanka and led a coalition of socialist parties founded in 2015.[12] In relation to the treatment of political parties in Sri Lanka more generally, DFAT reports that:
3.64 In-country sources reported that people affiliated with established political parties faced a low risk of official or societal harassment. Politicians are well-connected and can better access state protection than the average person, and may also have the means for private protection services.
3.65 No laws or policies discriminate on the basis of political opinion, and DFAT did not find evidence of systemic political discrimination against any particular group. DFAT assesses that political parties, including opposition parties, are able to operate freely and contest elections. Notwithstanding the targeted attacks against politicians associated with the ruling party in May 2022, DFAT assesses that both high and low ranking politicians and members of political parties face a low risk of violence. DFAT assesses that Tamil parties that espouse more radical views than moderate parties are more likely to have their activities monitored,XXXlthoughh can generally operate freely.[13]
[12] DFAT report at 3.58.
[13] DFAT report at 3.64 and 3.65.

Other sources indicate that being a member of a political party is unlikely to cause someone to face harassment and that criticising the government is not something people need to fear. Predominantly Sinhalese parties with minority members, including the JVP, are ‘vocal and criticise the government’ but individuals are not ‘in danger’ for being a member. Over the past 25 years, the JVP has entered ‘mainstream’ politics and their leaders are ‘the most critical’ of the government. The main opposition parties have held rallies and are free to speak to the media and in parliament.[14]
[14] Canadian Immigration Review Board Research Directorate, Response to Information Request LKA200987.E (29 April 2022) - telephone interview with a professor at an American university, who studies South Asian politics on 18 March 2022, accessed 3 September 2024.
The Tribunal has considered the applicant’s comments, but does not accept these support his claim that he will suffer harm due to being a previous JVP member. Whilst the outcome of the November 2024 general election is uncertain, the Tribunal considers the applicant’s comments are speculative and unsupported by any objective evidence. The independent country information indicates that the September 2024 presidential election was peaceful and widely considered to be free and fair.[15]
[15] See footnote 11 above.
The country information discussed above indicates there have been no widespread or systematic attacks against the JVP in recent years. Even if the JVP did not win majority power in the upcoming November 2024 general election, the country information indicates there is no widespread or systematic attacks against opposition political parties or those expressing dissenting opinions from the government in Sri Lanka. On this basis, the Tribunal finds there is no real chance the applicant faces serious harm due to his actual or imputed political opinion, as a previous JVP member.
Claim to fear harm due to political opinion against former Sri Lankan government and political figures
The applicant also claims to fear harm personally from former Sri Lankan government and political figures including Mr Wickremesinghe, [Mr B] and Mr Senarathne. In his statutory declaration to the Tribunal dated 18 August 2024, the applicant also refers to fear of harm from the UNP, the SLPP (the party of the Rajapaksas), the Sri Lankan authorities and the army.
At the first hearing, the applicant stated he agreed that [Mr B] is no longer a mayor and was sentenced to 5 years in prison, but he was released after one year. Mr Senarathne is no longer a minister but they are still all together. When asked why the above political figures and parties would pursue him, the applicant stated that it all related to the atrocities he had witnessed at the Batalanda detention camp. The Tribunal put to the applicant that it did not appear to be credible that these former political figures would be interested in pursuing him personally if he returned to Sri Lanka. The applicant did not directly respond to this issue but stated that he could not return to Sri Lanka.
At the second hearing, the applicant stated that while Mr Wickremesinghe is no longer President, he may come back into power again or may become a minister following the general election in November 2024. In his statutory declaration dated 16 October 2024, the applicant provided general commentary on what he anticipates will happen following the general election in November 2024 and he predicts that ‘the political and security situation looks scary and volatile’. He also provides one media article from 2019 and one media article from 2022. As these articles pre-date the 2024 Sri Lankan election, the Tribunal does not consider them to be relevant to the applicant’s particular circumstances.
The Tribunal has considered the applicant’s claim to fear harm from Mr Wickremesinghe, [Mr B] and Mr Senarathne, former government figures, political parties, the Sri Lankan authorities and the army. The Tribunal has found above that the applicant is no longer a member of the JVP. As demonstrated by the country information discussed above, the events at Batalanda are well-documented and no action has been taken against the alleged perpetrators to date, despite previous Commissions of Inquiry. The Tribunal does not accept that former government figures would be interested in taking action against the applicant for raising events which had occurred 35 years ago; had already been well-publicised ;and for which no action had been taken against the alleged perpetrators. This is particularly the case, where the attention of the authorities had shifted the 26-year civil war against the Tamil separatist movement.
As put to the applicant under s 424AA of the Act (as it was in force at the time of the hearing), the Tribunal considers that Mr Wickremesinghe’s power and influence has further diminished as he is no longer the President and he came third in the presidential election. Whilst the outcome of the November 2024 general election is uncertain, the Tribunal considers the applicant’s comments constitute general commentary and are not specific to his particular circumstances. Even if Mr Wickremesinghe was to win in a general election, the Tribunal does not accept that he, nor any of his associates would seek to harm the applicant for the reasons set out in the paragraph above.
Further, in relation to the applicant’s particular circumstances, the Tribunal has not accepted, that the applicant would himself publicly express his opinion about the Batalanda camp, given that he has not done so in the 35 years since the events occurred. The applicant has not provided evidence to demonstrate, to the Tribunal’s satisfaction, that any of the political figures he has named would personally harm him if he returned to Sri Lanka, or that they would send the other people to harm him on their behalf.
For these reasons, the Tribunal finds there is no real chance the applicant faces serious harm from current and former Sri Lankan government figures including: Mr Wickremesinghe, [Mr B] and Mr Senarathne; or from the UNP, the SLPP, the Sri Lankan authorities or the army.
Claim to fear harm due to participation in protests in Australia
In his statutory declarations to the Tribunal, the applicant claimed that in 2022, he participated in the protests in Sydney that were connected to the Aragalaya[16] protests in Sri Lanka in response to the economic crisis. He claims he was ‘quite vocal in expressing his political opinion against the Rajapaksa regime’. He also claimed that he had heard that the Sri Lankan Commission in Sydney and Canberra employ spies to monitor the activities of Sri Lankans who express their views against the Sri Lankan authorities.
[16] Aragalaya means ‘struggle’ – see DFAT report at 2.4.
At the first hearing, the Tribunal asked the applicant about his role in these protests and how he expressed his opinion. The applicant stated that he attended the protests, along with many other Sri Lankan people. He was not a leader or speaker. He personally did not experience any harm after his participation. His son attended protests in Sri Lanka and was arrested and subsequently released. He is aware that some of the leaders were arrested.

100. The Tribunal discussed with the applicant, country information that following the protests, Mahinda Rajapaksa resigned as Prime Minister and the Parliament had amended the Constitution to reduce presidential powers, which was a key demand of the Aragalaya movement.[17] Some protest leaders were arrested in 2022, immediately after the protests. However, more recently in May 2024, DFAT assessed that people arrested for participating in the Aragalaya protests face a low risk of official harassment and discrimination. More generally, protesters in Sri Lanka face a low risk of violence, harassment or discrimination during and after protest activity.[18] In response, the applicant claimed (in a statutory declaration dated 13 September 2024 and in his oral evidence), that some people involved in the Aragalaya movement continue to face arrest. He provided media articles about the arrest of high profile activists involved in the Aragalaya movement.
[17] DFAT report at 2.53.
[18] DFAT report at 3.71.
101. The Tribunal accepts the applicant’s evidence that he attended protests in Sydney in 2022 in response to the economic crisis in Sri Lanka. The Tribunal finds that he was not a leader or speaker at these protests. The Tribunal finds that he attended the protests due to his general dissatisfaction with the government at the time and the economic crisis in Sri Lanka, and not to strengthen his refugee claim. The Tribunal has therefore not disregarded his conduct under s 5J(6) of the Act.
102. Given the applicant’s limited participation in the protests, the Tribunal does not accept the applicant was a leader or high profile activist in the Aragalaya movement. Having considered the country information provided by the applicant, the Tribunal prefers the country information from DFAT that protesters involved in Aragalaya currently face a low risk of official harassment and discrimination, particularly where they were not leaders in the protest movement. Given that the applicant had a limited role in the protest movement and did not participate in the protest movement in Sri Lanka, the Tribunal does not accept that the applicant will face harm due to his attendance at protests in Sydney in 2022. The Tribunal does not accept his claim that spies monitored his activities and reported his participation to the Sri Lankan authorities. There is no objective evidence to support this claim and the Tribunal prefers the independent country information discussed above.
103. For the reasons set out above, the Tribunal finds there is no real chance the applicant will face serious harm if he returns to Sri Lanka, now or in the reasonably foreseeable future, for reasons of his political opinion or imputed political opinion, due to his attendance at protests in Australia in 2022.
Claim to fear harm from criminal gangs
104. In a statutory declaration dated 16 October 2024 following the second hearing, the applicant raised an additional claim that due to the collapse of the Sri Lankan economy, criminal gangs are engaged in criminal activities and extortion targeting anyone they perceive as wealthy. As the applicant has stayed in Australia for some time, he claims he will be considered as a wealthy person and will face serious harm.
105. The Tribunal has considered the applicant’s claim. The applicant has not provided any further evidence or details to support this claim, such as who will target him, how they will harm him and why they would harm him. The applicant did not raise this claim at either the first or second hearing and did not raise it as a claim when asked by the Tribunal if there was any other reason he fears harm. DFAT assesses that failed asylum seekers face a low risk of official harassment and societal discrimination on their return to Sri Lanka.[19] Based on the limited evidence before it regarding this claim and the information in the DFAT report, the Tribunal does not accept that the applicant will be targeted by criminal gangs due to his perceived wealth after living in Australia. The Tribunal finds there is no real chance the applicant will face serious harm from criminal gangs.
[19] DFAT report at 5.59.
Claim to fear harm due to being an unsuccessful asylum seeker
106. The applicant claims to fear harm if he returns to Sri Lanka as he would be regarded as an unsuccessful asylum seeker. When asked why he feared harm if he returned to Sri Lanka as a failed asylum seeker, the applicant stated that if he returns to Sri Lanka, he will be called and killed. They may put illicit drugs into his vehicle and put him in jail.
107. At the first hearing, the Tribunal discussed with the applicant, the information in the DFAT report regarding the situation for unsuccessful asylum seekers returning to Sri Lanka.[20] At the hearing, the applicant confirmed he had left Sri Lanka legally on his own passport on a tourist visa. He departed from Colombo Airport and did not have difficulty leaving the country. He has no terrorist or criminal record.
[20] DFAT report at 5.36 to 5.39.
108. The Tribunal finds, based on the applicant’s evidence, that in 2015, the applicant departed Sri Lanka legally from Colombo Airport using his own passport, arriving in Australia on a tourist visa. On this basis, the Tribunal finds that the applicant would not be considered to have committed an offence under the Sri Lankan Immigrants and Emigrants Act 1948 which makes it an offence to depart Sri Lanka, other than via an approved port of departure without a valid passport. The DFAT report states that returnees who departed Sri Lanka legally are not required to face a court as no offence under the Immigrants and Emigrants Act 1948 applies.[21] The Tribunal finds this also applies to the applicant’s circumstances.
[21] DFAT report at 5.36 to 5.39.
109. Based on the DFAT report, the Tribunal accepts that on return to Sri Lanka, the applicant may be interviewed to have his identity confirmed. Based on the evidence before it, the Tribunal finds that the applicant does not have a criminal or terrorist background, he is not subject to outstanding court orders, arrest warrants or criminal matters. The country information indicates he would not be detained or mistreated during processing at the airport in these circumstances. DFAT assesses that failed asylum seekers face a low risk of official harassment and societal discrimination on their return to Sri Lanka.[22]
[22] DFAT report at 5.59.
110. The applicant claims that if he returns to Sri Lanka, he will be called up and killed. They may put illicit drugs into his vehicle and put him in gaol. The Tribunal has considered the applicant’s response, but considers it to be speculative and not based on any reliable evidence. The Tribunal finds there is no basis for this claim, based on the country information discussed above. The Tribunal has considered the applicant’s other claims to fear harm more generally in its findings above.
111. Therefore, having considered all the evidence before it, including the country information and the applicant’s submissions, the Tribunal finds there is no real chance that the applicant will face serious harm due to being a failed asylum seeker, if he returned to Sri Lanka.
Country information provided by the applicant
112. In his statutory declaration and submissions to the Tribunal and the Department, the applicant refers to general country information about the political and human rights situation in Sri Lanka and has submitted several articles and links to articles. At the hearing, the Tribunal gave the applicant an opportunity to explain the relevance of this information and if there was any information specifically related to his claims. The applicant stated he wanted to provide general information about what had been happening in Sri Lanka.
113. The Tribunal has considered this information but does not consider that it supports the applicant’s claims. The articles cover general information about Sri Lankan politics and human rights, but are not directly relevant to the applicant’s particular circumstances. Where the JVP is mentioned, the articles refer to the JVP’s previous position as an opposition political party and statements made by party figures, which support the view that the JVP is now recognised as one of the mainstream political parties. The country information submitted with the visa application is also general in nature and at least 8 years old. The Tribunal prefers the more recent country information from the DFAT report discussed above. In any case, the Tribunal must consider the applicant’s particular circumstances.
Cumulative consideration of applicant’s claims
114. As well as considering the applicant’s claims individually, the Tribunal has considered his accepted claims on a cumulative basis. That is, the applicant is a [Age]-year-old Sinhalese man from the south of Sri Lanka who was active in the JVP in the 1980s. He was abducted in 1989 while he was active in the JVP and he witnessed killings and torture at the Batalanda detention camp. He continued working for the JVP when he lived in [Country 2], up until October 2014. He holds a genuine and sincere belief that the perpetrators of the Batalanda atrocities should be brought to justice. If he returned to Sri Lanka, he would continue to be interested in this issue and support any ongoing investigations into the issue by other bodies. Considering the applicant’s claims on a cumulative basis, for the reasons discussed above, the Tribunal finds he would not face a real chance of serious harm arising from these circumstances if he returned to Sri Lanka in the foreseeable future.

Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act. Therefore, he does not meet the criterion in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?

116. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm (s 36(2)(aa) of the Act).
117. The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its findings that the applicant would not face harm if he were removed from Australia to Sri Lanka. The Tribunal has not accepted that the applicant would face harm from current or former Sri Lankan government officials or their associates, if he returned to Sri Lanka.
118. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[23] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. That is, the Tribunal does not accept the applicant will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal is not satisfied there is a real risk that the applicant will experience significant harm as defined in s 36(2A) of the Act.
[23] MIAC v SZQRB [2013] FCAFC 33.
119. The Tribunal is not satisfied, on the evidence, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. The Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Conclusion
120. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION

123. The Tribunal affirms the decision under review.
Date(s) of hearing: 23 August 2024 and 1 October 2024
Representative for the Applicant: Mr Pathmanathan Rama

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.
…

p 1668.

LankaeNews
(25 June 2024) accessed 3 September 2024.

Amnesty International, Twenty Years of Make Believe – Sri Lanka’s Commissions of Inquiry (2009), accessed
3 September 2024.