1910877 (Refugee)

1910877 (Refugee) [2024] AATA 3459 (1 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Anthony Nicholas Silva
CASE NUMBER: 1910877

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Sue Zelinka
DATE:1 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 July 2024 at 2:14pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – no Convention nexus – motor cycle accident – criminal gang – attack on home – continued criminal visits to home – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 April 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 10 November 2017. The delegate refused to grant the visa on the basis that the applicant’s claim of harm at the hands of a criminal gang does not meet any grounds mentioned in s5J(1) of the Act.
The applicant appeared before the Tribunal on 11 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [an age]-year-old man of Sinhalese ethnicity and the Buddhist faith from Colombo where he worked as [an occupation 1]. He arrived in Australia in October 2017. He originally set out his claims in a written statement attached to his protection visa application (PVA) and spoke to those claims at a departmental interview.
Shortly before the Tribunal hearing, the applicant provided a submission in which he summarised his claims and provided an update to them, along with information from external sources such as Facebook and newspapers. There are some variations in his claims as he put them forward at the different times, although his account of the initial incident (see paragraph 14 below) is consistent over the various re-tellings. The sources of the variations on further claims are noted from paragraph 15 onwards.
The incident
[In] September 2017 the applicant was riding his motorcycle home after dropping his daughter at a [lesson] when he had an accident with another motorcycle. This was about three or four pm and hence daylight. Both riders fell off but neither was injured and both got to their feet. However, the other rider (whom the applicant claims was at fault) advanced on the applicant swearing. The other rider hit the applicant who retaliated, knocking the other man to the ground. The man on the ground, now bleeding from a graze on his face, shouted at the applicant words to the effect that he was associated with [Mr A] and would kill the applicant. The applicant knew from the newspapers that [Mr A] was a criminal or gangster. By this time, other people gathered around and told the applicant he should leave. The applicant said one of the bystanders referred to the other rider as a bad person. The applicant drove off (he was only about [distance] from his home) and told his wife the general outline of the story. He did not report the incident to the police as there was no damage and that, he thought, was the end of the matter.
Harm arising from the incident
The applicant flew to [Country 1] [later in] September 2017 for a business trip relating to a [business 1] he and his wife had. During the evening of [a later day in] September 2017, some men broke into his house when only his wife and daughter were there. In his PVA statement, the applicant said the intruders were “the man who fought with me” and some others and they had weapons. They damaged some goods and may have tried to rape his wife. The wife rang the applicant in [Country 1] and he came home the next day. He then lodged a complaint with the local police and then went with his wife and daughter to his wife’s village. The applicant expanded on these claims at the departmental interview, saying he was not sure that his wife was raped: she just said they “wanted to”. She had a few scratches but nothing more. The intruders smashed a few items and left the house within 15 minutes.
The applicant submitted a number of photos to the Department. At the interview the delegate asked the applicant who took the photos which the applicant said showed the damage to his house. He replied that his brother had done so: his brother lived close to the applicant’s house. The applicant told his brother not to call the police, saying he would do so on his return the following day. Following the delegate’s written decision which found that the photos were taken in the daylight whereas the break-in was stated to be after 8pm, the applicant sent a correction saying that the brother had indeed taken the photos on the following day.
At the Tribunal hearing, the applicant gave a cohesive account of the break-in incorporating all the elements that had been mentioned so far. He said that intruders entered his house on the night of [the later day in] September 2017 whilst he was in [Country 1] and only his wife and daughter were home. The Tribunal asked the applicant how many people his wife reported seeing. He said that there were four men and they had guns. He also reported that the men called out his name while they searched the house looking for him. His wife could not identify any of the men and he could not say how they knew his name. The intruders smashed some items. They were in the house between 10 minutes and a quarter of an hour. When they left, his crying wife rang him: he was asleep at the time in a [Country 1] hotel. He then rang his brother to go around to the house and assist her but gave instructions to his brother over the phone that nothing was to be tidied up or set to rights in order that he might see the damage for himself.
At the Tribunal hearing, the applicant said that arrived home the following day. He accompanied his wife to the local police station where they made a report about the break-in. When the police asked who the men could be, the applicant said that he had been threatened by someone, name unknown, who worked for [Mr A] (he was referring to the man who shouted at him after the traffic accident over two weeks previously). When he mentioned the name [Mr A], he said that the police became very excited. The police inspector said something like: “he’s a dangerous criminal and if you make a complaint against him he will kill all your family!” The applicant and his wife did not proceed with their complaint at the police station. They came home and the applicant took his wife and daughter and they went to his mother-in-law’s house. They have not returned to their own home which belongs, in fact, to the applicant’s mother. She and her sister are usually in residence there but happened to be away on the night of the break-in. The applicant’s mother and aunt returned to the house some time after the break-in and have remained there until this day.
In his original submission to the Department, the applicant included a statement from his wife which was written on 26 September 2018. She states that on [the later day in] September 2018 (presumably this is a typographical error and she means 2017, as she gives the other relevant dates as 2017) “four people came to our house about 8pm and searched [for the applicant]. I saw a lot of other unknown people; about ten were guarded our house at the time” (sic). [Detail deleted.]
The Tribunal’s queries about the harm
The Tribunal put it to the applicant that the connection between the minor traffic accident and the break-in at his house over a fortnight later through the agency of a famous gangster seemed far-fetched. The applicant replied that the man involved in the traffic accident had indeed shouted his connection with [Mr A] and threatened the applicant. The Tribunal asked why the applicant had concluded that the break-in was directly attributable to the man in the traffic accident. He replied that when the four armed men broke into his house, one of them shouted: “When we had the accident he hit me and I have to kill him!” This outburst was reported to the applicant by his wife who heard it during the break-in; hence the applicant knew immediately that the man in the traffic accident was the one leading the break-in. This contradicted previous evidence that the wife did not understand why unknown men were breaking into her house.
The Tribunal asked the applicant how the criminals had found out his name and address as it had already been established that no details were exchanged by either party at the scene of the accident. Furthermore, the accident was some [idstance] from the applicant’s house – so not in the immediate neighbourhood – and he said he did not recognise anyone he knew among those who gathered around the acene of the accident. The applicant said the criminal gang would have used their own local networks to track down the applicant’s identity but that this process must have taken them two weeks.
The applicant stated that on the night of the break-in, not only were there four armed men who entered the house, but there were more men who waited outside. He said the neighbours had later told the family this. The Tribunal asked why the neighbours hadn’t called the police on seeing this, especially as some neighbours may have known that the applicant was away and that his wife and daughter were alone in the house. The applicant said the neighbours had seen that the men were armed. The Tribunal said that was even more reason that the police should have been called. The applicant replied that the neighbours were probably scared and did not want to bring unnecessary trouble on themselves. He did not explain how neighbours had seen armed men outside on the street when it was night time.
Ongoing attention
The Tribunal asked if the men responsible for the break-in ever returned to the house. He said that they have not stopped, right up until now. Once or twice a month they knock on the door and ask if the applicant is home. The Tribunal said it was far-fetched to suggest that people have been doing this for seven years: if they had the capacity to find the applicant’s name and address in 2017, why would they not be able to find out if he had returned to his old address? The applicant modified his answer to say that they might come every three or four months and knock on the door, checking to see if he was home. The Tribunal put it to the applicant that knocking on the door to see if the applicant answered was a cumbersome way of checking whether he has returned. He said that they did this at the beginning but now the gang is well-organised at the village level and they can get information (for example, whether the applicant has returned to his old home) in other ways. The Tribunal asked when these “other ways” came into effect: that is, when did they stop knocking on the door. The applicant eventually said that with the new information services, they don’t need to come and check, but they haven’t stopped completely. They still come to the house from time to time and sometimes see his mother. The Tribunal asked if his mother has told these people that her son lives overseas. He says she has, but the people still come and check the house because they expect that sons will return home and visit their mothers.
The Tribunal asked if the men ever threatened his mother. He said that they knock on the door, and bang on the gate, and shout and swear. The Tribunal asked why the applicant’s mother did not call the police and he said he had advised her not to. The Tribunal asked why, if this loud and intrusive activity was going on outside the house over a period of years, the neighbours did not call the police. He said that it was because the neighbours had seen that the men were armed and they don’t want to get involved in that sort of activity.
Departure from Sri Lanka
A very short time after the applicant, his wife and daughter moved to his mother-in-law’s, his friend phoned to say that his visa had come through. The applicant had applied for [a specific visa] several months earlier, for travel to Australia for a [work project]. The applicant did not work [in this line of work]: he worked for an establish [occupation 1] firm that provided [occupation 1 work] for [specified clients]; and he and his wife had a private [business 1]. However, he said he [practised a specified skill]. When the friend phoned with news about the visa, the applicant thought he should use the visa and leave Sri Lanka as he believed that people were trying to kill him so. His wife also advised him to leave.
The Tribunal asked if he worried that he was leaving his wife and daughter alone, and his mother and aunt in a house that he believed was targeted by a gang of criminals. He said he was very worried about his mother and aunt: his mother is now sick because of all the problems caused by people coming to the door and, if she opens it, telling her that they are looking for her son as they want to kill him. The Tribunal again put it that that it was far-fetched to believe that his mother would not ring the police, given that she knew her son was abroad and therefore could not be reached or hurt by the gangsters. The applicant replied that he believes that the harassment of his mother is a way of the gangster’s getting revenge on him in his absence. He believes that he would definitely be killed if he returned to Sri Lanka, even after seven years from the original incident. The applicant said that he believes the man in the traffic incident suffered a devastating blow to his pride: to be knocked to the ground and made to bleed by the applicant was a huge insult, especially for a person with his profile.
With regard to his wife and daughter, the applicant said that his wife divorced him three years ago and lives her own life. His daughter resides with her maternal grandparents and continues at school. Neither of them have encountered any problems with the alleged criminal gang since leaving the family home in September 2018.
Recent updates on his claim
Shortly before the Tribunal hearing – hence over five and a half years from the departmental interview – the applicant sent a submission containing updates of his situation. He said that his brother, a businessman in Colombo, started encountering problems in August 2022 with a gang attempting to extort money from him. The extortion was the enforcement of the payment of “protection money” which a number of businessmen in the area paid. The applicant’s brother refused to pay. The extortion gang was allegedly headed by a criminal known as [Mr B] who phoned the applicant’s brother to warn him that he was sending his henchman called [Mr C] to collect the money. This was in 2023.
[Mr C] arrived at the brother’s house the following day but was informed that the brother had gone to his mother’s house nearby. The mother’s house was the family home where the applicant had lived until the break-in incident. When [Mr C] went to the mother’s house, he saw both the applicant’s mother and brother standing on the foot path outside. [Mr C] exclaimed that the brother must be the brother of “that bastard [name] (the applicant’s name). I have been to this house before and I am still waiting for him”. The applicant’s brother replied that he knew his brother had floored [Mr C] with just one blow and that [Mr C] had run away like a coward. As the brother and [Mr C] became more belligerent, the mother screamed and neighbours came running and separated the two men.
The applicant submitted that this was how he found out the identity of the man in the traffic accident and who subsequently led the break-in of his house. It was [Mr C], henchman to a gangster called [Mr B] whom the applicant states is closely associated with [Mr A]. He asserts that it is clear that [Mr C] remembers the applicant and the original incident, that it still rankles, and that [Mr C] is still determined to kill the applicant. The applicant implies that [Mr C] has the backing of the criminal gang in pursuing the applicant. He states that the criminal gang has an excellent network and would be able to trace the applicant anywhere if he returned to Sri Lanka and attempted to settle elsewhere in the country.

The Tribunal asked the applicant if his mother recognised [Mr C] when he came up to her and the brother on the street outside her home, given that he had allegedly been coming around to her house for six years and that she has, on occasion, opened the door and engaged in exchanges. The applicant said his mother did not say she recognised [Mr C]: she is not in good health and would not recognise someone like that. Moreover, it may not have been [Mr C] at every visit – other members of the gang may have knocked on the door looking for the applicant.
The applicant had sent the Tribunal a submission prior to the hearing with a number of links to Sri Lankan newspaper articles. The relevance of a number of these was unclear but the final one was from a paper [named] dated [in] December 2022. The section submitted read as follows:
[Details deleted linking Mr B and Mr C, including a description of their criminal activities.]
The Tribunal referred to the article mentioned in paragraph 30 above and to another one the applicant submitted from the Sri Lankan [Newspaper 1] dated [in] August 2023 which said that, according to information received by the police, [Mr B] is said to be intimidating businessmen in the [named] areas while “hiding in [Country 2] and collecting extortion money”. The Tribunal put it to the applicant that these articles indicated that [Mr B] was a major criminal, the head of a large criminal enterprise, and was living in [Country 2] leaving ‘[Mr C]’ on the ground in Sri Lanka to enforce the local operations. The applicant said he agreed that that was what the articles said. The Tribunal put it to him that ‘[Mr C]’ would be far too busy and important to personally go around to see the applicant’s brother, to find that the applicant’s brother was in another house nearby (his mother’s), to go around there, and to engage in conversation on the footpath with the applicant’s brother and mother. The Tribunal further put it to the applicant that it was not believable that ‘[Mr C]’ volunteered himself as the leader of the home invasion group some six years earlier and that he had gone on that home invasion with the intention of killing the applicant. The Tribunal also found it difficult to believe that ‘[Mr C]”, seeing the applicant’s brother and mother standing outside the mother’s house, deduced almost instantly that the man on the footpath must be the brother of the man whom he had intended to kill six years. The applicant said that his mother’s house was clearly visible from the street and easily recognisable.
The Tribunal put it to the applicant that he had stated that the person he feared was a member of [Mr A’s] criminal gang yet his recent submission contained no mention of [Mr A]. Indeed, the only submission referring to him – or a criminal who might be him – is from a newspaper in 1999 when a person whose name was [name] was mentioned in connection with a political [story] in Sri Lanka’s north. The nickname by which this person was known was reported as [Mr A1] [details deleted]. [Mr A1’s] home address was given as a town in the North-West Province. The applicant said that [Mr A1] was [Mr A] and that he is now in the same criminal group as [Mr B] and [Mr C]. The Tribunal notes that there are no newspaper reports or any other evidence in the submission which supports this contention.
The applicant’s submission detailed a long story of continuing friction between his brother and ‘[Mr C]’, now also involving the applicant’s nephew. Like the applicant, the brother has chosen not to report any incidents to the police. The applicant claims that the police in fact assist the criminal gang. There are no claims, nor does the evidence suggest, that the applicant’s brother was being extorted because of any relationship with the applicant; rather, the applicant’s brother was simply a businessman in an area where protection money was being demanded and occurred completely independently of the applicant. That particular problem is not relevant to the case before the Tribunal.
The representative made some oral submissions. He noted in general that the High Court held that just because applicants exaggerated their claims or parts of their testimony, it did not necessarily mean that they were telling lies. He then addressed several of the specific points the Tribunal had raised.
In respect of the issue about how [Mr C] had deduced that the man in the traffic incident – the man he stated that he wanted to kill – was the applicant’s brother, he gave the following explanation. He said that people in Sri Lanka live in their houses for many years, and therefore it was not an odd assumption that the person currently owning the house (in this case, the applicant’s mother) would be the same as the one who owned it six years earlier. Hence if the mother and brother are at the family home, then the other man of relevant age who was there six years ago must be another son of the same mother. The two men must be brothers both with a connection to the family home.
The representative addressed the point that it was highly unlikely that a criminal like ‘[Mr C]’, running the Sri Lankan end of a major criminal enterprise for a boss based off-shore, would run around Colombo like some petty hoodlum, conducting home invasions and collecting money. The representative said that [Mr C] was now a major figure but in 2017, at the time of the home invasion, he had not been as important. He had conducted that home invasion and then, five years later, confronting the applicant’s mother and brother on the street outside the house where the incident had occurred, he had been reminded of the reason for the home invasion – to punish the man who had knocked him down after the motorcycle accident. Indeed, the applicant’s brother then rubbed salt into the wound by saying that his brother had felled [Mr C] with one blow and [Mr C] had run away. This would renew [Mr C’s] need to take revenge on the applicant.
With respect to [Mr C] doing lower-level criminal tasks such as personally collecting protection money when he is now such a major figure, the representative said that the criminal gang with which [Mr C] is connected ([Mr B’s] gang) conducts business across the board. While there may be major criminal activities, there are also modest ones such as protection rackets involving local businessmen such as the applicant’s brother. The gang members doing the collecting are seen and this means that the gang and those higher up in the criminal echelons are widely feared. As for ‘[Mr C]’ giving himself away by saying out loud that he intended to kill the applicant’s brother, this was a means of instilling fear into that brother with whom [Mr C] had separate business (that is, the protection money).
When the representative was invited to direct the Tribunal’s attention to the area specified in the Act as the one which would be the main reason for the harm, he stated that the applicant was a member of a particular social group comprised of “persons who insult underworld gangsters or criminals”. He added that police at a local level are very corrupt and cannot protect people against gangster violence.
The hearing ended with the applicant saying that he could not return to Sri Lanka and resettle in a place other than his home as Sri Lanka is a small place and finding someone is not difficult for a criminal organisation. They have a very good network.
Analysis, findings and reasons
On the basis of his passport, his language and his testimony, the Tribunal finds that the applicant is a national of Sri Lanka.
The Tribunal is prepared to accept that the applicant was engaged in a minor traffic accident in Colombo [in] September 2017 at which neither he nor the other party exchanged details or called the police and from which each party rode away on his respective motor bicycle after a short altercation.
From this point, the applicant’s testimony is a series of assertions, far-fetched and unsupported. The point of these assertions is to build a story that the applicant fears for his life because the other party in the minor traffic accident was a member of a criminal gang which has the power to seek out and kill the applicant; and that the criminal gang is so powerful that the police are unwilling or unable to protect the applicant. The reason for the harm is to revenge the honour of the man involved in the traffic accident, whom the applicant allegedly knocked to the ground during the short altercation.
The Tribunal does not accept this narrative. To start at the beginning, it finds it far-fetched that at the scene of a minor traffic accident, one person shouts out that he is connected to a criminal called [Mr A] whose name, the applicant asserted, was widely known through the media. According to the applicant, there were no apparent consequences of the motor cycle accident – no police or insurance reports, no lingering at the scene talking to witnesses, simply the two parties getting on their motor cycles and riding off.
More than a fortnight later, when the applicant is in [Country 1], his wife calls him, crying. She says that four armed men have been in the house and that they were looking for the applicant. When they found he was not at home, they left within 15 minutes of their arrival. The applicant’s response is to phone his brother to go around and help, but the applicant also tells the brother not to touch anything in the house (that is, straightening up after any damage done by the invaders) and not to ring the police. The applicant states that he will inform the police when he returns home the following day.
The only connection between this incident and the earlier traffic accident is the applicant’s assertion that his wife told him that one of the men called out: “When we had the accident he hit me and I have to kill him!” The Tribunal finds it difficult to accept that a home-invader gives such a running commentary. The Tribunal also notes that the applicant’s wife makes no mention of any such commentary in her statement. The applicant further asserts that when he relayed this information to the police, linking the home invasion to the earlier traffic incident, this immediately brought a reaction and the police inspector warned him of the seriousness of pursuing charges if it involved the criminal gang of [Mr A] in any way. The applicant then ceased making his report of the home invasion.
Shortly afterwards, the applicant left Sri Lanka. He claims that men have continued to visit his house which is now inhabited only by his mother and aunt, his wife and daughter having moved after the home invasion and never returned. Despite the applicant’s assertion that the man who wishes him harm is part of a sophisticated criminal network which tracked him down and identified his house in the two weeks following the traffic incident, the man – or his criminal associates continue to make personal checks on the house in order to determine if the applicant has returned. The applicant was very vague on this point: he claimed these checks are still ongoing to this day and that they occurred once or twice a month but he then said that perhaps they occurred only every three or four months and that now the gang is well-organised and can get the information on his whereabouts in other ways and perhaps they ceased knocking on the day in 2022 or 2023. The Tribunal rejects this assertion in its entirety.
The applicant was asked many times why the man in the traffic accident would pursue him for so many years. The answer has always been that the man’s pride was hurt by the applicant knocking him to the ground while they were having their short altercation after the accident. He wanted revenge for this loss of face – being pushed to the ground and grazing his face. The Tribunal is puzzled as to why this man’s ‘loss of face’ would trigger the extreme reaction of wanting to kill the other party when those who saw the brief incident were all unknown to both the parties involved – they were merely passing motorists and pedestrians who happened to be there. No names were given; there is no evidence of any recognition of anyone by the applicant, the other party in the accident, nor by those around.
The Tribunal has examined the totality of the applicant’s claims from those he presented initially in his Protection visa application to the testimony he advanced at both the Departmental interview and the Tribunal hearing, including his explanations when asked questions about points of his testimony, and right up to and including the further claims and latest submission. The Tribunal notes that the testimony consists of assertions which are then treated as things that have actually happened and are then built upon. However, none of the applicant’s assertions stands up to scrutiny.
The Tribunal has been willing to accept that there was a traffic incident with an unknown person which resulted in the exchange of a couple of blows and was then all over. The harm which the applicant has claimed resulted from this incident was a break-in at his house [number] days later at a time when he happened to be out of the country. The account of this incident left the Tribunal with many questions it put to the applicant. The responses to these questions were unsatisfactory: there were further assertions, avoiding the questions. The answers often required the listener to accept implausible and improbable connections.
The Tribunal is not satisfied that the person in the motorcycle accident was a criminal who identified himself as a gang member. It is not satisfied that the person in the motorcycle accident tracked the applicant down and then, [number] days later, broke into his house with an armed group of fellow criminals. It is not satisfied that the criminals continued to visit the house over the next five to seven years (the applicant could not be pinned down as to whether the visits have actually ceased, and if so, when). The Tribunal is not satisfied that the person on the motorcycle volunteered to the applicant’s mother and brother the information that he was the person who broke into the applicant’s house and wanted to kill the accident. The Tribunal is not satisfied that the person in the motorcycle accident is now the main operative for an international offshore gangster and that the person is still intent on killing the applicant for a perceived insult received in a minor scuffle seven years.
The various integers of the claims are unpersuasive and unconvincing, based upon nothing but assertions. There is also a cumulative effect of many highly implausible items. Taken all together, the Tribunal is not satisfied that there is a real chance that if the applicant returned to Sri Lanka he would be persecuted. As it is satisfied that there is no real chance of serious harm, it follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as set out in s 5J(1) of the Act.
Even if the Tribunal accepted that there was a real chance of harm, which it emphatically does not, it notes that the harm is not for reason of any of the reasons set out in s 5J(1)(a) of the Act. It notes that the applicant has consistently claimed that the reason for the harm he feared was that he had caused a man in a traffic accident to lose face and the man wanted revenge. The Tribunal finds that the harm the applicant fears is revenge for a private wrong by a private actor and the reason for this harm is not one of the reasons set out in s 5J(1)(a) of the Act.
The representative suggested that the applicant was a member of a particular social group (PSG) constituted by persons who insulted criminals or gangsters. The Act provides that to be a member of a PSG, a person must share, or be perceived as sharing, with each member of the group a characteristic which in this case is described as ‘insulting a criminal or gangster’. The characteristic must be innate or immutable and so fundamental to the person’s identity or conscience that he should not be required to renounce it. Furthermore, the characteristic distinguishes the group from society. In the applicant’s case, his action in responding to a physical attack on himself with an opposing blow which happened to knock the other person over is not a manifestation of an innate or immutable characteristic fundamental to his identity or conscience. It was simply a one-off reaction to a very specific situation, perpetrated moreover against a stranger whom he did not know at that time to be a criminal or a gangster. The Tribunal is not satisfied that any harm has befallen the applicant, or will befall him in the reasonably foreseeably future, for reason of his membership of a particular social group constituted by those who insult criminals or gangsters, or any other PSG that could be formulated along similar lines.
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). As the ‘real risk’ test under the complementary protection imposes the same standard as the ‘real chance’ test under the refugee criterion (MIAC v SZQRB [2013] FCAFC 33), for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary ad foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sue Zelinka
Member

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

[2024] AATA 3459

1 July 2024

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