1918038 (Refugee)

[2024] ARTA 525

1918038 (REFUGEE) [2024] ARTA 525 (22 OCTOBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Representative for the Applicant:            Mrs Nimalini Ambikaipalan (MARN: 9359526)

Country of reference:  Sri Lanka

Tribunal Number:  1918038

Tribunal:General Member Garry Fitzgerald SC

Place:Melbourne

Date of hearing:  12 July 2024

Date of last submissions:   9 August 2024

Date of decision:  22 October 2024

Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 October 2024 at 10:43am

CATCHWORDS

REFUGEE – Protection Visa – Sri Lanka – race – Tamil ethnicity – religion – Hindu faith – imputed political opinion – imputed or perceived as a supporter, associate or member of the LTTE – mental health issues – membership of a particular social group – a failed asylum seeker returnee – applicant does not have a well-founded fear of persecution – credibility concerns – not refer to the Minister – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Migration Act 1958, ss 5, 36, 65, 351, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Sri Lanka.  He applied for the visa on 14 September 2018, following the lifting of the bar for Safe Haven Enterprise visa (SHEV) applications for protection.[1]  The delegate refused to grant the applicant a Safe Haven Enterprise visa (Class XE) Subclass 790 visa on 24 June 2019.

   [1]Following the lifting of the bar on such protection applications by s 46A(1) of the Act on 29 September 2015.

3. 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.

4. The applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.  The applicant was represented in relation to the review.

5. Before and after the hearing, the applicant filed with the Tribunal by his representative various submissions and other documents in support of his application.  The last documents so filed were received on 9 August 2024.  These documents included an undated written statement made by the applicant after the hearing (the 2024 Statement).  They are set out in Attachment 1 to this decision.  The Tribunal has considered and had regard to these documents.  The Tribunal will refer to these documents, where necessary or relevant, by the definitions set out in that attachment.

6. This review concerns the civil war in Sri Lanka, which started in about 1983 when the Liberation Tigers of Tamil Eelam (LTTE) (often referred to as the Tamil Tigers) launched a guerilla war seeking Tamil statehood in northern Sri Lanka.  The LTTE surrendered over 15 years ago, in May 2009. [2]  The applicant left Sri Lanka in October 2009 after the end of the civil war and arrived in Australia in November 2010.

   [2]DFAT Country Information Report Sri Lanka dated 2 May 2024 (DFAT Report), [2.2, 3.72-3.75]. 

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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).  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 Attachment 2 to this decision.

9. 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 Attachment 2 to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

11. The issues in this review are whether:

    a.there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,

    b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicant also requested that the Tribunal consider whether to refer the matter to the Minister for consideration.  This will be discussed further below.  The Tribunal declines to make this recommendation.

    Nationality, country of reference and receiving country

14. The Department accepted the applicant’s identity and that he was a Sri Lankan citizen based on the information and material provided.[3]  As there is nothing to suggest to the contrary, the Tribunal also accepts that the applicant is a Sri Lankan citizen.  Accordingly, Sri Lanka is the country of reference and receiving country for his application for a protection visa.

    [3]See the Departmental Decision Record dated 24 June 2019 (the Departmental Decision), Part 3, pages 1 and 2.

    The applicant’s travel and immigration background

15. According to the applicant’s evidence at the hearing, the information in his Departmental application[4] and Departmental movement records, the applicant arrived in Australia on [date] November 2010 from [Country 2] aboard an unauthorised boat.[5]

    [4]Application for a protection visa lodged by the applicant with the Department on 14 September 2018 (the Departmental or SHEV application).

    [5]Codenamed ‘[deleted]’.

16. The applicant’s evidence was that he left Sri Lanka on [date] October 2009 lawfully.  He travelled by aeroplane from Sri Lanka on his own passport and under his own name to [Country 1].  After that, he travelled unlawfully, through a people smuggling network, from [Country 1] to [Country 2], and then by boat until he arrived on Christmas Island in November 2010. 

17. The following Table 1 summarises the applicant’s migration history in Australia:

    Table 1[6]

    [6]The table is based on the one set out in the Departmental Decision, Part 4, page 2.  See also the Pre‑hearing submissions, [2-7].

Date	Event
[Date] November 2010[7]	Arrived in Australia on a vessel and transferred to Christmas Island Immigration Detention Centre
11 December 2010	Entry Interview in Christmas Island
23 January 2011	Refugee Status Assessment (RSA) commenced
29 April 2011	RSA Decision: negative outcome
20 May 2011	Independent Merits Review (IMR) lodged
10 August 2012	IMR Decision: negative outcome
[Date] December 2012	Federal Magistrate Court (FMC) – judicial review of IMR decision commenced in Victorian registry (FMC case)[8]
[Date] July 2013	FMC case – Minister Withdrew[9]
23 May 2018	s 46A bar lifted
14 September 2018	Departmental/SHEV application lodged
24 June 2019	Departmental Decision on SHEV application: refused

[7]The Tribunal has corrected this date, which was incorrectly transposed in the table in the Departmental Decision as ‘11/7/2010’.  The date of arrival in Australia according to the applicant, Departmental movement records and the Pre-hearing submissions, at [2], is [date] November 2010.

[8]Case no. [deleted] in the FMC Victorian registry.

[9]The applicant’s representative submitted that the result of this withdrawal by the Minister was that orders were made by consent in the FMC case on [date] July 2013 by Judge [name] that the Minister had erred by failing to afford the applicant procedural fairness.  This was constituted by a failure to consider an integer of the applicant's claims, namely whether the applicant will face a real chance of persecution as a result of his being a Tamil (MZZDY v Minister for Immigration): Pre-hearing submissions, [5].  The orders of Judge [name] are not among the papers before the Tribunal but it accepts the representative’s submissions about this.

1. These events are explained further below, as necessary.

   The applicant’s background

2. This background is based on the applicant’s evidence at the hearing, his 2024 Statement, the Pre-hearing submissions, information in his Departmental files and his Departmental application. 

3. The applicant is in his [age range].

   Background in Sri Lanka

4. The applicant is of Tamil ethnicity and Hindu faith. 

5. He was born in [year] in [Town 1], near Jaffna, in the Northern Province of Sri Lanka.  He is [one] of [number] children, including [sisters] and [a] brother.

6. His family moved to [Town 2], also near Jaffna, due to the disruptions of the civil war, between 2000 and 2001. 

7. In late 2001 until April 2007, he moved with his family to the town of [Town 3], also near Jaffna. 

8. He completed his High School [at] a government school in [Town 3] in 2002. 

9. After school, he worked in a [shop] in [a town] near Jaffna from 2003 until 2004, and then in a shop [in] the south of the Northern Province in 2004.

10. His brother opened [a] shop in [Town 3] near Jaffna in 2004.  The applicant worked there from 2004 until about 2007.[10]

    [10]According to page 3 (paragraph 12) of the Pre-hearing submissions.  Or, according to the SHEV application, from March 2005 to March 2007.

11. In April 2007, he moved to Colombo.  He worked there in a [workplace]. 

12. From about September 2007 until October 2009, he travelled to [Country 3] or [Country 4] on various trips, returning to Colombo and living there between trips.  He did so lawfully, using his own name and passport, but he said with the assistance of people smugglers.  It was done so as part of his plan to flee Sri Lanka. 

13. Nevertheless, he legally exited Sri Lanka five times and re-entered four times on these occasions, without any difficulties with Sri Lankan authorities, as shown in Table 2 below:

    Table 2[11]

    [11]This table is based on information provided by the applicant in his Departmental application, at pages 10‑12.

Date left Sri Lanka	Destination	Date returned to Sri Lanka
[date] September 2007	[Country 3]	[date] November 2007
[date] November 2007	[Country 3]	[date] October 2008
[date] October 2008	[Country 4]	[date] December 2008
[date] July 2009	[Country 3]	[date] July 2009
[date] October 2009	[Country 4]	Did not return – to [Country 1], [Country 2] and then arrived in Australia in November 2010

1. The Sri Lankan civil war ended in May 2009 with the surrender of the LTTE.

2. His father, mother, sisters and brother are still living in [Town 3].

3. His father is elderly.  His mother is bedridden.  One of his sisters and his brother live with and look after his parents. His other sister lives in a separate house in the village with her husband but she visits her parents often to help take care of them.

4. He confirmed at the hearing that his brother was still running the [shop].

5. The applicant said he was not a member of the LTTE or connected with it in any way and did not claim or assert that he was involved in any political activity while he was in Sri Lanka.

6. He was asked at the hearing whether everything was okay with his family in Sri Lanka, apart from the medical problems which his parents were experiencing.  He eventually said that his family was affected with stress and depression because he was separated from them.

7. While he was en route to Australia, he was arrested and jailed in 2009 or 2010 in [Country 1] for working illegally.  He was visited in jail by Sri Lankan embassy officials as part of a consular visit.  He was released later and came eventually to Australia.

   Background in Australia

8. After arriving in Australia, he worked for about seven months or so as a [occupation], then for six years as a [occupation] at a [workplace]in [suburb] until about late 2018 or 2019, when he left that job.  He then worked at a factory until it burnt down.

9. He has lived and worked in Victoria since about 2013.

10. Since 2019, he has worked as a [occupation] for various companies.  He has worked for the latest company for about a year. He has obtained [credentials], which he showed the Tribunal at the hearing. 

11. He did not claim at the hearing to be involved in any LTTE or Tamil political activities in Australia, nor to be involved in any commemorations of this. 

12. However, after the hearing, he made new claims regarding this in the 2024 Statement.  This will be discussed later when outlining his protection claims, considering his credibility and making findings.

    The applicant’s claims for protection

    Summary

13. In summary, the applicant seeks protection in Australia due to claimed persecution based on his ethnicity (Tamil) and/or because he would be suspected, imputed or perceived as a supporter, associate or member of the LTTE or the cause of Tamil separatism.  He also makes claims based on his mental health.

    Background to the claims

14. Due to the long and complicated history of this matter, there is a considerable amount of information and material contained in the Departmental and Tribunal files regarding this application.[12] 

    [12]See Table 1. 

15. Since arriving in Australia in 2010, the applicant has been interviewed by Departmental officers on five occasions[13] and has given evidence to the Tribunal at the hearing in July 2024.  He has received three adverse decisions and had one decision remitted to the Department.[14]  The long process has been, no doubt, a long and trying experience for him.

    [13]See Table 1.  The Departmental interviews were on 11 December 2010, 23 January 2011, 17 January 2012, 30 June 2014 and 18 April 2019, referred to in the Departmental Decision.  The Tribunal notes that the representative’s letter to the Department dated 15 March 2017 referred to the first four of these interviews but noted the date of the January 2011 interview as Australia Day (26^th).  The Tribunal has checked the relevant interview cover sheet which shows the date of this interview as 23 January 2011.

    [14]See Table 1.  The three adverse decisions are the RSA, IMR and the Departmental Decision.

16. Nevertheless, the Tribunal must decide this review on the available evidence and country information at the time of this decision, as to the risks of harm and mistreatment which the applicant faces in the foreseeable future if he returns to Sri Lanka.

17. Since the Tribunal has formed the view that the applicant has maintained substantially similar stories, broadly speaking, as to the incidents involving the Sri Lankan police and army in 2006 and 2007 which underlie his main claim for protection, it will not go through his earlier accounts of these incidents in detail.  This is summarised in the Departmental Decision in Part 5. 

18. It will however set out below his current claims for protection as to these incidents and refer, where relevant, to differences with his earlier claims, which he was examined on at the hearing.

19. The Tribunal also notes that the applicant has made new claims for protection, after the hearing, as identified in the Post-hearing submissions at paragraphs 31–37 and referred to in the 2024 Statement.  These relate to events in Sri Lanka in 2021 affecting his brother and the applicant’s participation in events in Australia.  They will be discussed further below.

20. The Tribunal will briefly summarise the three earlier adverse decisions for context, before outlining the applicant’s protection claims for this review.

    RSA Decision in April 2011

21. On 29 April 2011, the RSA assessor made findings and concluded that the applicant was not a refugee.  The assessor:[15]

    [15]This summary is based on the summary in the Departmental Decision, at pages 4 and 5.

    a.found that there were improvements in the overall security situation in Sri Lanka and because of his lack of any past involvement in the LTTE and adverse political profile, the applicant would not be of any interest to the Sri Lankan authorities in the foreseeable future;

    b.did not accept that the applicant was targeted by paramilitary groups such as Karuna and that his fear of them is localised, and to avoid them, he could relocate from Jaffna to another part of Sri Lanka, i.e. Colombo or Kandy, where notable Tamil settlements can be found and Tamil is spoken;

    c.found the applicant has never undertaken any overt political activities and departed Sri Lanka on a valid passport and would not attract any adverse attention in Colombo;

    d.found no evidence that the applicant was of any particular interest to either state or non-state agents in the past and will be in the reasonably foreseeable future; and

    e.did not accept that the applicant’s claimed fear was well-founded.

    IMR Decision in August 2012

1. On 10 August 2012, the IMR reviewer made negative findings as to his protection claims which relevantly:[16]

   [16]This summary is based on the summary in the Departmental Decision, at pages 5 and 6.

   a.found the applicant’s explanation of the discrepancies (in the details of his detention and torture) were short on detail and his reason for the lack of consistency was general and superficial;

   b.accepted that it was not uncommon for the Tamils to be stopped and interrogated due to the fighting between the Sri Lankan army and the LTTE.  The reviewer accepted that the applicant was often questioned by the army and other authorities about his customers in his shop and that he may have been taken in for questioning around this time and released on the same day;

   c.found the applicant was able to resume his running of the shop that indicated that the authorities had no ongoing interest in him and specifically did not suspect him of any associations with the LTTE.  He left Jaffna in March 2007 some five months after the claimed incident;

   d.accepted that the applicant was taken into custody by the army in Colombo along with a number of others and that the applicant was not personally targeted;

   e.accepted that the applicant might have been kept in detention for a week and he may have been mistreated. The fact that he was released, even if his employer paid some money for this purpose, indicated that there was no interest in him by the authorities as a possible LTTE suspect;

   f.found the ability of the applicant to negotiate his entry and exit procedures in Colombo using his passport in his own name nine times over a two-year period weakened his claims of fear on return as a failed asylum seeker or as a person whose ethnicity or imputed political opinion adverse to the government exposed him to persecution on re‑entry;

   g.found the applicant has made numerous trips out of Sri Lanka and returned without incident, even in periods of great tension with the LTTE which indicated that he had no profile which would attract the adverse attention of the authorities upon his return; and even if it were established that he had applied for asylum in another country, country information does not support that he would be harmed for this reason;

   h.accepted that as a Tamil, the applicant may be subjected to greater scrutiny by the authorities in this phase of the history of Sri Lanka, however, he had no profile as an LTTE supporter or member and he had no political profile or any other characteristic that would bring him to the attention of the authorities;

   i.did not accept the applicant’s initial claims that the authorities have looked for him at his home in Jaffna as this contradicted later evidence he provided about registration of households; and

   j.was satisfied that the chance that the applicant would face persecution on return for reasons of his ethnicity, political opinion, as a failed asylum seeker or for any other Refugee Convention reason was remote and that his fear of persecution for a Convention reason was not well-founded.

   Departmental Decision in June 2019

2. On 24 June 2019, the Departmental Decision was made.  This is the decision under review.

3. The delegate, in rejecting his protection claims as a refugee or for complementary protection:[17]

   [17]See the Departmental Decision, at pages 9,10, 15-16.

   a.accepted that the applicant is a Tamil from the north of Sri Lanka, that he is experiencing mental health issues as claimed, that he departed Sri Lanka lawfully using his own passport and that he was detained during the round-ups by the Sri Lankan authorities and he was tortured at the time;

   b.found that the applicant did not have an existing adverse profile with the Sri Lankan authorities due to his Tamil race, youth, previous residence in the Northern Province, his prolonged absence from his country or any perceived links with the LTTE; and

   c.did not accept he has an ongoing adverse profile with the Sri Lankan authorities due to his perceived links with the LTTE or for any other reason.

   The claims in the review

   Claims before the hearing

4. The applicant did not file a new statement with the Tribunal for the review until after the hearing (the 2024 Statement). 

5. Before the hearing, the Tribunal received the Pre-hearing submissions dated 1 July 2024.  These were signed by the applicant as ‘accurately and completely’ presenting his claims.  The applicant confirmed this at the hearing.  In paragraphs 11 and 12 (on page 2) and 7 to 15 (on pages 3 and 4) of the Pre-hearing submissions, the applicant’s evidence on his background and his protection claims was set out.[18]  This amounts to his pre‑hearing statement on his protection claims, which he testified at the hearing was true.[19]

   [18]The Pre-hearing submissions state that this evidence is based on various earlier interviews, hearing and submissions for the RSA, IMR and SHEV applications: [6] (page 4).

   [19]This was confirmed by the representative in the Post-hearing submissions: [15] (page 4).

6. Focusing on the protection claims, this evidence was that:

   a.he was arrested by the Sri Lankan army near Jaffna in 2006, taken to a camp with other people and detained, interrogated and tortured for a week (the 2006 incident):

   On one occasion in 2006, the army officers in black clothes arrested him during the daytime in an armoured vehicle when he was in the lane next to his house after visiting his neighbouring aunt. Due to the emergency regulations, there was a curfew and they put a gun in his mouth and arrested him. They tied his hands together, and he was taken to the [Town 1] army camp along with 7-8 other people, where he was detained and tortured for one week.

   They tortured him and hit him every day with sticks and their guns in his back and kicked him with their shoes. They interrogated him, asking him about LTTE activities because they wanted to know whether his customers [in his brother’s [shop] near Jaffna] were LTTE members. He was eventually released after his parents came to the army camp, screaming and crying, and paid a bribe, which was common practice and occurred several times. For one month afterwards, the applicant was required to report to the army camp every day, and later weekly. He was beaten each time. [20]

   [20]Pre-hearing submissions: [9-10] (page 4).  Reproduced as written.

   b.he was arrested by the Sri Lankan army in Colombo in 2007, taken to a police station with other people and detained, interrogated and beaten for a week (the 2007 incident):

   After [the 2006 incident], the applicant decided to move to Colombo. … He obtained employment working in as a [occupation] in a [workplace] called [name]. One day in 2007, Sri Lankan army officers in their uniform came to the [workplace] and alleged that there was a bomb upstairs under the bed and they were going to arrest everyone, because all the employees of the [workplace] were Tamil. … The army officers took the detainees to the police station in a big truck, where the applicant was held for one week. The police officers beat him and interrogated him, asking who had planted the bomb. He was released after the [workplace] owner paid for the employees to be released.[21]

   [21]Pre-hearing submissions: [11-12] (pages 4-5).  Reproduced as written.

   c.he was detained and taken to a police station in Colombo in 2009 where he was questioned, then released the same day (the 2009 incident):

   … In 2009, when he returned to [Colombo], he was subjected to searches by the Sri Lankan authorities. Due to his Jaffna ID, he was taken to the local police station and questioned about why he had come to Colombo and whether he was part of the LTTE. Since the authorities held records of the applicant’s previous arrest, they questioned him about the [workplace] bombing incident as well. He was released later that same day.[22]

   [22]Pre-hearing submissions: [13] (page 5).  Reproduced as written.

7. As a result of these incidents, the applicant had initially moved from near Jaffna to Colombo, and then sought to leave Sri Lanka, which he finally did on [date] October 2009, about five months after the end of the civil war: see Table 2.

   Claims at the hearing

8. At the hearing, the applicant claimed protection because of these three incidents in 2006, 2007 and 2009.

9. The applicant was asked at the hearing mainly about five topics:

   a.the three incidents;

   b.his travel in and out of Sri Lanka to [Country 3] and [Country 4] from 2007 to 2009;

   c.his final departure from Sri Lanka in October 2009 to [Country 1];

   d.his family back in Sri Lanka; and

   e.whether he had any medical or mental health treatment while he was Sri Lanka, and what treatment he had for this in Australia.

   The three incidents

10. The applicant had given inconsistent accounts of these incidents in earlier applications.  He said at the Entry Interview that he was detained for two days, not a week, during the 2006 incident.  He also said at that interview that he was detained by the police, not the army initially, during the 2007 incident.  For the RSA, he said he was only detained by the army during this incident.  The 2009 incident had not been referred to in his earlier applications.  He also referred to another incident during the Entry Interview involving the police in Jaffna which was not mentioned in his evidence to the Tribunal. 

11. The applicant was asked to explain these inconsistencies and omissions.  In substance his explanation was that he had given inconsistent accounts, earlier reported incidents that he no longer maintained or had come up now with the 2009 incident because of stress, forgetfulness and mental problems.

12. Nevertheless, the applicant has maintained most of the time since the RSA in 2011 something in substance like the two more important incidents, which are the 2006 incident and the 2007 incident.[23]

    [23]See the 2011 declaration for the RSA made on 23 January 2011, pages 1 and 2.

    Travel in and out of Sri Lanka from 2007 to 2009

13. He confirmed that he had undertaken the travel to [Country 3] and [Country 4] from 2007 to 2009, as recorded in the Departmental Decision and in his SHEV application.  The trips are summarised in Table 2.  He was therefore out of Sri Lanka for about 14 or 15 months of this 22‑month period, while spending about seven or eight months in Sri Lanka during that time.  The Sri Lankan civil war ended in May 2009, about five months before he finally left.

14. He confirmed that all these trips were undertaken lawfully, with his own passport and under his own name. He said that he arranged these trips through agents or people smugglers, using different agents at different times.  He could not remember how much he paid them. After some equivocation, he admitted that he had been able leave and re-enter Sri Lanka through immigration control: he ultimately accepted that he had no problems.  However, he kept saying it was arranged through the people smugglers.  He said he had to spend time in Sri Lanka during this period because he had to wait for his agents to make arrangements to get him out of Sri Lanka.  He was asked whether he applied for protection in [Country 4] or [Country 3].  He said he did not try, because he could not do that in those countries.

    Final departure from Sri Lanka in October 2009 to [Country 1]

15. He confirmed that he had lawfully travelled from Sri Lanka to [Country 1] in October 2009 on his own passport and under his own name.  Again he made the point that the people smugglers arranged it all.

    Family back in Sri Lanka

16. He said that his father, mother, [sisters] and brother are still in Sri Lanka, living in the village of [Town 3], which is near Jaffna. His father is elderly, and his mother is bedridden and ill.

17. He said that one of his sisters and his brother lives with and looks after his parents in a house in the village.  His other sister lives in a separate house in the village with her husband but she visits her parents often to help take care of them.

18. His brother is still running the [shop] near Jaffna where the applicant used to work from 2004 to 2007.[24]  His brother has operated this business since 2004.  At all material times, the area around Jaffna was under the control of the government forces, not the LTTE.

    [24]According to paragraph 12 (page 3) of the Pre-hearing submissions.  Or, according to the SHEV application, from March 2005 to March 2007.

19. The applicant was asked whether everything was okay with his family in Sri Lanka, apart from the medical problems which his parents were experiencing.  He eventually said that his family was affected with stress and depression because the applicant was absent.  When he was asked if there were any other reasons why his family was not okay, he finally said that he thought his mother had fallen ill because of him and his situation being separated from them.  It is puzzling, if the applicant is of personal interest to the Sri Lankan authorities and at risk of persecution, that his family have not been persecuted or harmed despite their connection to him.

20. He was later asked if his family in Sri Lanka had been harmed or mistreated by the authorities.  He said that his brother had been approached by the authorities asking about the applicant’s whereabouts.  When pressed as to when this took place, he said that it occurred after he left Jaffna in about 2007.  This was the only potential harm or mistreatment which he could point to at the hearing involving his family.

    Medical or mental health treatment in Sri Lanka and in Australia

    Sri Lanka

21. The applicant did not see a doctor or go to a hospital for the treatment of any harm or injuries he suffered as a result of the three incidents.

22. The applicant did not undergo any mental health treatment while he was in Sri Lanka.  He said that such facilities were not available and people were trying to flee the country during the civil war.

    Australia

23. The applicant was examined at the hearing about the three psychiatrist reports then before the Tribunal: namely, the Psychiatrist’s 2014 report of Dr [A] and the Psychiatrist’s 2019 and 2024 reports of Dr [B].

24. His evidence was that he first visited a psychiatrist in June 2014 (Dr [A]) who was engaged on his behalf by his current representatives.  In that doctor’s opinion, based on the history the applicant described and information from his general practitioner and his representatives, the primary diagnosis was that the applicant had post-traumatic stress disorder (PTSD) and had subsequently developed major depressive disorder.  The doctor also stated that ‘he was at risk of further deterioration and suicide if his appeal for protection is not granted’. [25]  The doctor requested in the report that the applicant’s general practitioner treat him under a Mental Health Care Plan, provide supportive therapy for depression, refer him to a psychologist for therapy and ‘consider commencing antidepressants if mental state deteriorates’.[26]  The applicant said he attended his general practitioner for about six months after this report and was given tablets for his sleeping and thinking but he could not remember what they were or when he was given them.  He did not see a psychologist. 

    [25]Psychiatrist’s 2014 report, pages 2 and 3.

    [26]Psychiatrist’s 2014 report, pages 2 and 3.

25. He could not otherwise remember any treatment or medication for any mental problems between June 2014 and May 2019, when he saw the second psychiatrist, Dr [B].  He saw this doctor in connection with his SHEV application, then before the delegate.  In his brief report,[27] the doctor ‘made a diagnosis of post traumatic stress disorder, triggered by the recent bombing in Sri Lanka’.[28]  He observed that the applicant did not have ‘guilt feelings or suicidal ideation’ and his ‘cognition was within normal limits’.  The doctor stated the applicant ‘was commenced on an antidepressant [to] help with his depressed mood and sleep’.  He said the applicant needs ‘ongoing counselling and medication for at least one year’.

    [27]Psychiatrist’s 2019 report.

    [28]This must be a reference to the Easter Sunday bombings of Christian churches and international hotels by Muslim extremists in Sri Lanka on 21 April 2019.  See DFAT report, [2.70].

26. The applicant’s evidence was inconsistent and confused as to whether he started taking tablets for his mental problems after seeing Dr [B].  Eventually he said that this was the case: so he had not taken antidepressants before May 2019.  He claimed that he had been seeing Dr [B] or speaking to him nearly every month since May 2019, except when his depression or stress got too much for him.[29]

    [29]The Tribunal does not accept this.  That doctor’s reports do not note this, as referred to in the following two paragraphs, which would be expected if it were the case.  After the hearing, in the 2024 Statement, the applicant provided further statements about his dealings with mental health and medical doctors in Australia: pages 6 and 7.  These statements do not materially alter what he told the Tribunal about this during the hearing, except that they are inconsistent with him seeing Dr [B] regularly or throughout the period of 2019 to 2024.  Moreover, he confirmed there that he ‘had not been taking any medication for depression for a long period of time’ when he returned to the doctor in 2024.

27. Dr [B] saw him in May and June 2024 to prepare the Psychiatrist’s 2024 report for this review.  The doctor referred to the report being ‘prepared from 2 therapeutic interviews’ he had with the applicant and information obtained from his general practitioner.  In the report, the doctor ‘made a diagnosis of Post Traumatic Stress Disorder and Major Depression’ and noted that the applicant:

    had occasional suicidal thoughts. He became very tearful when he discussed his mother situation. His thought stream and form were normal. Thought content recurrent memories and dreams of the torture.  He had no abnormal experiences such as hearing voices, his cognition was within normal limits. … He was commenced [an] antidepressant, when reviewed on 05/06/24, his sleep has improved, he needs ongoing counselling and antidepressant treatment. He is a high suicidal risk.

28. There was no mention in this report of any consultations with the doctor or with the general practitioner after the Psychiatrist’s 2019 report, or any treatment or medication given to the applicant since that report.  He said he was still taking the antidepressant prescribed above by this doctor.

29. The applicant also put in late evidence about having diabetes.[30]

    [30]In his 2024 Statement, he briefly referred to having been referred to a diabetes specialist but not taking the medication: at page 7.  He also provided a blood test fated 20 May 2024 and some prescription labels.

    Claims after the hearing in the 2024 Statement and Post-hearing documents

30. After the hearing, the applicant sought to clarify, elaborate upon or explain aspects of his protection claims already made above in the 2024 Statement and Post-hearing documents.  The statement is substantial, running to eight pages.  He also raised new protection claims which had not previously been made.  It is regrettable that the applicant filed more material for the review after the hearing than he did before it.

31. In the 2024 Statement, he gave the following further accounts of the three incidents.

32. As to the 2006 incident, he stated that:

    In 2006, I was running my brother’s [shop] in [Town 3], Jaffna while he took care of the deliveries. One day, I was arrested near my house and taken to [Town 1] army camp where I was detained and tortured for one week. This was not the first instance that I had been arrested, as working in the shop, both Sinhalese and LTTE people would come into the shop. The authorities would come to find out who was coming into the shop and they would ask me questions because I was the one in the shop on a daily basis.

    All shops were under surveillance, they would check to see if we were supporting the LTTE with hardware, wires, batteries, or bombs hidden in motorbikes and the like. This happened many times, the Sri Lankan authorities would come and search the shop, or they would say there were weapons or bombs while I was working there and then they would take me to the [Town 1] army camp. Afterwards my parents would have to come and make a scene and then they would release me. But this was the first time that I was taken in an armoured car by the army with 7-8 other people when I was in the lane next to my house after curfew where they questioned me, then they detained for a full week and tortured in the army camp. They hit me with sticks and a gun and interrogated me, wanting me to support them and tell them information about LTTE activities.

    At the hearing, the Member noted that in the initial Entry Interview, I said that I had been arrested by the army and detained for 2 days and I had to report daily, whereas I now say that I was detained for one week. As I explained, I was very confused and traumatised from the boat journey when I attended the initial Entry Interview. I have listened to the tape recordings for the RSA interview and the two IMR interview. In each of these interviews, I have consistently stated that I was kept for one week, which is the correct information.[31]

    [31]2024 Statement, part 1, page 2 (reproduced as written).

1. As to the 2007 incident, he stated that:

   At the hearing, the Member noted that I had stated in the Entry Interview that I was arrested in Colombo by the police in 2007 while working in a shop where they had planted some grenades and weapons in the roof along with the rest of the people in the shop, detained for a week, and that I paid 60,000 rupees to be released.

   The Tamil word that I used can be translated as shop, but to be more precise, I was referring to the [workplace] where I worked. I also did not say ‘roof’. This was a mistranslation, I said that the grenades and weapons were in a ‘room’ that was ‘upstairs’. The Sri Lankan army camp was right next to the [workplace] and they came and alleged that there was a bomb and everyone, maybe 15-20 people, were arrested by the police. I paid a bribe of 60,000 rupees to be released. This is the same incident as the [workplace] incident that I was referring to.

   Also, it was both the army and the police who were involved, as I stated in my 2nd IMR interview. I was working in the front of the [workplace] and the army officers came in and went upstairs. Then they told us they found a bomb [and] they were going to arrest everyone. They arrested us and the police came and took us to the police station in a big truck. We were kept in a police jail and they put us in handcuffs when we needed to go to the bathroom. … I have terrible nightmares of the torture and beatings there to this day.[32]

   [32]2024 Statement, part 3, page 3 (reproduced as written).

2. As to the 2009 incident, he stated that:

   At the hearing, the Member noted that my arrest by police when I returned to Colombo in July 2009 had not been mentioned before but was mentioned in paragraph 13 of my lawyers’ submissions. This is incorrect. I have mentioned this several times in previous interviews after I was asked if anything happened to me when I returned from Colombo from [Country 3]. In the 1st IMR interview, I stated that when I was staying in [Colombo] on my return from [Country 3], all the houses were subject to searches. Due to my Jaffna ID, I was taken by the police to the local police station and questioned and interrogated about why I had come to Colombo. They asked me why I was staying there and whether I was part of the LTTE. I was taken in the morning and released in the late afternoon. At that time, I feared for my life because there was a lot of surveillance so I went out as little as possible.

   I again mentioned this incident at the 2nd IMR interview as well and provided further details when requested. The police looked at my records, which meant that they saw my involvement with the [workplace] bombing incident and questioned me about who worked at the [workplace], who did the bombing, and what LTTE connections I had.[33]

   [33]2024 Statement, part 4, pages 3-4 (reproduced as written).

3. In the 2024 Statement, he also added a fourth incident in 2006 as follows (the police arrest in 2006):

   At the hearing, the Member noted that I had not mentioned the incident where I was arrested for allegedly throwing stones in the submissions prepared by my lawyers. As I have stated previously, there were many times when I was arrested by the army, the police, and also the CID.

   In 2006, around the same time I had been arrested, detained and tortured by the army in Jaffna, there was a separate incident where the police arrested me when they saw me with a group of people. I used to stand by the shops with boys who threw stones at the Sinhalese army officers. The others ran away but I stayed and so I was arrested and later released the same day after a bribe of 50,000 rupees was paid by family.

   The Member stated that I had not repeated that story since the Entry Interview. But this was raised in the RSA interview and again in the 1st IMR interview. As I explained in the 1st IMR interview, there was a flaw in the interpretation in the Entry Interview, where my words were interpreted to the effect of; ‘the police arrested me when they saw me with a group of people standing near the shops where boys did mischievous things like throwing stones’. In fact, I was trying to explain that the Sri Lankan army officers would go around the public areas where Tamils were hanging around and randomly shoot their guns into the air to threaten the local people and scare them to maintain order. So the Tamils, usually men, would then try to retaliate or defend themselves by burning tyres and throwing stones. When this incident in 2006 happened, the other Tamil men ran away but I stayed where I was. As a result, I was arrested and taken to the police station.

   The 1st IMR interviewer misunderstood what I had said in the Entry Interview. In the Entry Interview, I was asked about when I was arrested by the army and when I was arrested by the police. I explained that they were two different incidents and that as a result of having to report to the army every day, I couldn’t take it anymore, so I decided to go to Colombo. The interviewer then asked what happened with the police, which was the incident with the stones and which happened in Jaffna. As I explained in the 1st IMR interview, I was released by the police on the same day due to the bribe paid by my family.[34]

   [34]2024 Statement, part 2, pages 2-3 (reproduced as written).

4. In the 2024 Statement, he also added further evidence about the authorities questioning his brother about him in 2021:

   In addition, after I told my family about the Tribunal Hearing, my brother told me that he has actually been paying bribes regularly to the army officers in the camp nearby to where he lives and works. On one occasion in 2021, they questioned him about my whereabouts which means that they are still searching for me. [Official 1] has written a letter confirming this incident. The Sri Lankan authorities are well-known for house visits and surveilling people’s phones. Nothing is safe there.

   My brother did not tell me this because of my health issues, he did not want me to worry and he was trying to protect me.[35]

   [35]2024 Statement, pages 5-6 (reproduced as written).

5. Letters from his brother and the parliamentarian about these matters were also filed after the hearing.[36]

   [36][Details deleted]. 

6. The applicant also made other new claims, based on his attendance at refugee or Tamil events in Australia as follows:[37]

   [37]2024 Statement, pages 4-5 (reproduced as written).

   … I recently attended the protest in Canberra in September 2023 in front of Parliament House where the other asylum seekers walked from Melbourne to Canberra to see the Immigration Minister. There are photos of me online and on my personal [social media] profile. There is also a photo of [me]. The Sri Lankan authorities are suppressing any pro-separatist activities and they kill anyone who is pro-Tamil, maybe not officially but undercover. I know the Sri Lankan authorities are monitoring the Sri Lankan diaspora and their online activities so they will find out where I have been going and my political opinions. I fear that I will be seen as being anti-government. The new Wickremasinghe government has been very harsh on protesters, killing them and imprisoning without a release date. I fear the same thing will happen to me if I return to Sri Lanka. I apologise for not raising this earlier with the Member, but I only remembered afterwards. I was very stressed and anxious during the interview, and I forgot many things.

   I have also attended Maaveerar Naal (Heroes’ Day) commemorations every year since I arrived in Australia to remember the fallen LTTE comrades. I did not think this would affect me but in Sri Lanka, Maaveerar Naal commemorations are banned and the Sinhalese disrupt and harass our commemorations. I have attended commemorations to remember Colonel Kittu as well.[38]

   [38]2024 Statement, pages 4-5 (reproduced as written).

7. Photographs and screenshots from a video about these events were also filed after the hearing.[39]

   [39]See Attachment 1. 

8. Finally, the applicant summarised his protection claims as follows:[40]

   [40]2024 Statement, pages 5-6 (reproduced as written).

   If I return to Sri Lanka, I will have to go to Colombo Airport and I am afraid to go through customs and security because they will check my records due to my being away from the country for over 16 years. They will see my past records of arrests due to their suspicion that I am an LTTE supporter, and this will lead to further questioning of me. I am afraid of what will happen because my experience has been that it is not just questioning, they will also torture and beat me.

   ….

   I believe that I would be of concern to the Sri Lankan authorities if I were forced to return to Sri Lanka. As a failed asylum seeker, I would be interrogated and they would search my records, which I know they have. As I explained in my 2nd IMR interview, on my return, I would need to be registered, as I have been recorded as missing by the Grama Seveka (village headman) for the census, and they will only grant the registration once they have a person’s history.  Further, they will find my previous records of arrests and harass me like they did when I was arrested [in] 2009 and also in [Country 1] when the Sri Lankan embassy officials visited me in prison.

   Hence, even if I go back, I will be harmed because all my previous records will be there, and they will question and torture me again. Even if the authorities release me, I am afraid of what will happen when I am in their custody. They have beat me and tortured me in the past, and I know they are very capable of doing so again. I am sure that if the authorities do beat and torture other people, they will not tell anyone about it, they will try to hide it.

9. After the hearing, the representative forwarded another psychiatric report: the Psychiatrist’s July 2024 letter from Dr [B].  In this letter, the doctor stated the applicant:

   made an urgent appointment to see me on 19/07/24 he stated he was still not sleeping well and prior to the last hearing at the administrative tribunal on 12/07/24 he did not sleep until around 2am as he was very anxious and apprehensive about the hearing, he was casually dressed with depressed, anxious affect. As he was subjected to several interviews and torture by the Sri Lankan army, it is not surprising that people like him who have PTSD and depressive symptoms become more apprehensive and lose sleep prior to court hearings (interview situations). He stated that due to problems with the zoom call he had to ask the interpreter to repeat the questions a few times. He was given supportive counselling and encouraged to continue the anti‑depressant medication. He was also trained in relaxation techniques which I have encouraged him to practise regularly.

   … Due to his heavy workload and long distance travel to my rooms for consultations, I have offered him telephone consultations on a regular basis to help with his PTSD and depression.

   Summary of the applicant’s protection claims

10. The representative summarised the current grounds for the applicant’s claims for protection as fearing harm if he returns to Sri Lanka as follows:[41]

    [41]Pre-hearing submissions, [15] (page 5).

    The applicant therefore fears harm because he is suspected of former LTTE involvement or other activities perceived to be in opposition to the Sri Lankan government and because of his Tamil ethnicity. As a failed asylum seeker returnee, with past records of interrogation and confrontation with Sri Lankan authorities on at least two occasions, he would be easily identified, detained, and killed. If he is forced to return, he would attract adverse attention as he has been overseas for 15 years.

11. The representative added the following in the Post-hearing submissions:[42]

    [42]Post-hearing submissions, [24].

    … we submit that the Member should take the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm, especially if it is accepted that the applicant was detained, interrogated, and tortured on at least two occasions by the army in Jaffna in 2006 and in Colombo in 2007, he was arrested and questioned by police in Jaffna in 2006 and in 2009 in Colombo, and he was questioned by Sri Lankan Sinhalese embassy officials in [Country 1].

12. The applicant’s representatives make two main points about the applicant’s mental health concerning his application for a protection visa.  The first point is they submit that his psychological vulnerabilities are relevant to an assessment of whether he will face serious or significant harm if he returns to Sri Lanka.[43]  The second point relates to considering his physical and mental health for the purpose of recommending Ministerial intervention.[44]

    [43]Post-hearing submissions, [24-25]. The submissions also mentioned his diabetes at [26].

    [44]Post-hearing submissions, [28]. 

    Other claims

13. The Tribunal’s own review of the material before it does not suggest or disclose any other claim open to the applicant which clearly emerges from or on the material before it.

    Credibility of the applicant

14. When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants.  On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[45]  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[46]

    [45]Section 5AAA of the Act.

    [46]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.

15. Section 367A of the Act[47] provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made.

    [47]Formerly, s 423A of the Act for protection matters.  Section 367A in new part 5 of the Act is in substantially identical terms.

16. The new claims about his attendance at refugee or Tamil events in Australia in recent years and the new evidence from his brother about an enquiry made about the applicant in 2021 relate to matters after the Departmental Decision in June 2019.  Further, the added claim or evidence about the police arrest in 2006 is not actually new, as it was mentioned before the decision.  Accordingly, the adverse inference about these matters under s 367A has no operation in this case.

100.   Nevertheless, the applicant’s inconsistencies, confusion and late raising of evidence are relevant to the assessment of the applicant’s credibility and reliability generally.  The explanations offered for these matters have also been considered.

101.   The applicant’s representatives have asked the Tribunal to consider his claims within the context of his mental health.  It was claimed that the applicant had ‘suffered war‑related violence and interpersonal violence in Sri Lanka, which is the cause of his ongoing and chronic Post-Traumatic Stress Disorder (PTSD) and Major Depression’, referring to the Psychiatrist’s 2024 report.[48]The representative requested the Tribunal to have a ‘trauma‑informed response’ to the applicant, being mindful of the effect on the applicant of repeatedly explaining traumatic past events.[49]  The Tribunal endeavoured to conduct the hearing and examine the applicant in accordance with the relevant guidelines.[50]  It did so in an appropriate manner to enable it to determine whether the events alleged took place as claimed and so that it could properly review his claims.  It notes that the applicant’s representatives were present throughout the hearing and no issues were raised by them about the conduct of the hearing in the Post-hearing submissions.  The Tribunal will bear in mind the applicant’s claimed vulnerabilities in assessing his credibility.

[48]Pre-hearing submissions, [8]; Post-hearing submissions, [14].

[49]Pre-hearing submissions, [9-10].

[50]Administrative Appeals Tribunal Migration and Refugee Division ‘Guidelines on Vulnerable Persons’ dated November 2018.

102.   Looked at overall, the applicant presented at the hearing as a difficult witness to rely upon.  His 2024 Statement and the evidence contained in the Pre-hearing submissions present a coherent and comprehensible narrative of the relevant events that was not evident in how he gave oral evidence.  He routinely answered questions at the hearing by saying he did not remember, could not explain things, or by non-responsively expressing exaggerated fears of returning to Sri Lanka.  Nearly all the evidence for his claims comes from him and him alone.  It is not independently corroborated or documented.  This is not unusual in protection cases.  The problems with his evidence at the hearing could in part be explained by his claimed psychiatric conditions.  However, it makes fact-finding more challenging. 

103.   The Tribunal accepts the psychiatric letters as authentic and the opinions expressed by the doctors as genuine and qualified. 

104.   It notes, however, that the opinions there expressed are based on the applicant’s account of his history.  The weight to be given to them thus depends on its view of the credibility and reliability of the account he has given.  There is a paradox or begging of the question at the heart of this.  It involves accepting confused or inconsistent accounts of past events based on psychological explanations for the defects, which explanations themselves beg the question as to the truth of those accounts by accepting them.

105.   Moreover, the precise scope of these opinions must also be considered.  They amount to this: the applicant suffers from diagnosed PTSD and depression because of his claimed experiences in Sri Lanka and because he has not been granted protection.  The opinions about him being a suicide risk were first expressed in 2014 and since then have waxed and waned.[51]  He has not been regularly undergoing the treatment and taken the medication prescribed.  It is also troubling that he has only seen these psychiatrists in connection with various stages of his protection applications, and not otherwise.  Any psychiatric treatment has been intermittent and connected to his protection application.

[51]In Psychiatrist’s 2014 report (‘occasional thoughts of suicide … he is at risk of further deterioration and suicide if his appeal for protection is not granted’); in Psychiatrist’s 2019 report (‘he had no suicidal ideation’, mentioned twice); Psychiatrist’s 2024 report (‘he had occasional suicidal thoughts … He is a high suicide risk’); Psychiatrist’s July 2024 letter (no mention).

106.   After careful consideration, the Tribunal has arrived at this conclusion: it did not find the applicant at the hearing to be generally credible and reliable as a witness, but it will accept, based on the psychiatric and his written evidence, but with some reservations, that the four incidents occurred from 2006 to 2009.  As the Tribunal did not find the applicant generally credible, the benefit of the doubt has no place in this case.[52]

[52]There is some authority for the view that the benefit of the doubt should be given to those who are generally credible, but who are unable to substantiate all their claims: SZLVZ v MIAC [2008] FCA 1816 at [25]. A similar approach is endorsed in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’), re-issued February 2019 at [203]–[204].  Note that the Handbook is not binding on decision makers. However, the courts have not endorsed a free-standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law: SZNRZ v MIAC [2010] FCA 107 at [19]–[21]; SZLPN v MIAC [2010] FCA 202 at [16]–[17]; MZAKQ v MIBP [2016] FCCA 1186 at [50]–[61]; SZRGE v MIAC [2013] FMCA 18 at [52]–[60]; SZQMB v MIAC [2012] FMCA 24 at [48]–[51]. In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision maker to be ‘satisfied’ of the matters set forth in s 65 of the Act: SZNRZ v MIAC [2010] FCA 107 at [20].

Findings on the applicant’s claims

107.   Accordingly, based on the material before it and its assessment of the applicant’s credibility, the Tribunal’s findings as to the facts relevant to his protection claims may be summarised as it accepts that:

a.he is ethnically a Sri Lankan Tamil and he is from the Northern Province (which at the relevant times when he lived there was in Sri Lankan army and government-controlled areas);

b.he was not a member of the LTTE: this has been consistently maintained by the applicant;

c.he was taken into custody, detained, interrogated and mistreated as set out above in the 2006, 2007 and 2009 incidents and the police arrest in 2006 because he was a suspected member or supporter of the LTTE/Tamil independence or because of his Tamil ethnicity/Northern Province provenance or residence: this has been substantially consistently maintained by the applicant and it is not implausible, based on country information;[53]

[53]DFAT Report, [3.12].

d.on each of those four occasions, he was not charged and the Sri Lankan authorities released him;

e.the Sri Lankan authorities asked his brother about him in 2007: this has been consistently maintained by the applicant and it is not implausible because of the 2006 and 2007 incidents;

f.he travelled lawfully, under his own name and passport, but with the assistance of agents or people smugglers, to and from Sri Lanka on four occasions between 2007 and 2009 as set out in Table 2, without problems with Sri Lankan authorities;

g.he left lawfully, under his own name and passport, but with the assistance of agents or people smugglers, from Sri Lanka in October 2009 to [Country 1] and eventually Australia as set out in Table 2, without problems with Sri Lankan authorities;

h.while he was in a [Country 1] prison in 2009 or 2010 for illegally working there, he was visited by Sri Lankan embassy officials;

i.he attended the 2023 refugee event in Canberra and has attended some Tamil commemorative events while in Australia; and

j.he suffers from diagnosed PTSD and depression because of his claimed experiences in Sri Lanka and because he has not been granted protection.

108.   The Tribunal does not accept that:

a.the Sri Lankan authorities asked his brother about him in 2021: this is vague and lacks detail; the question asked or the purpose of the alleged enquiry was not explained; the applicant did not seek to call his brother to give evidence; and it is also implausible that the authorities would continue to be interested in him 14 or 15 years after they last had any dealings with him and released him yet again;

b.he was a person of special or adverse interest to Sri Lankan authorities while he was in Sri Lanka: while the Tribunal accepts the four incidents, these occurred because of his proximity to events (such as the alleged bombing in the 2007 incident or the stoning in the police arrest in 2006); because of his ethnicity and provenance from the Northern Province; and because of the ‘round-ups’ and mistreatment of and discrimination against Tamils during a bitter civil war.  Moreover, he was released each time and continued to live and work in Sri Lanka, including in Colombo.  It is especially significant that he travelled into and out of Sri Lanka lawfully, under his own name and without any difficulties with the authorities multiple times during and after the civil war from 2007 to 2009 (see Table 2).  The Tribunal does not accept that he was a person of interest to authorities while he was in Sri Lanka; and

c.he has or will become a person of special or adverse interest to Sri Lankan authorities since he left Sri Lanka: the [Country 1] embassy visit in 2009 or 2010 while he was in prison may be explained as a routine consular visit to a citizen in trouble, it does not suggest any sinister interest in the applicant; and his mere attendance at the refugee event and the Tamil commemorations in Australia also does not lead to the conclusion that he has or will become a person of interest to the authorities.  This will be explained further below when considering the relevant country information, and considering his position if he returns as a failed asylum seeker.  Moreover, as to the suggestion he will become a person of interest to authorities if he returns because he would need to explain his history to the village headman, the Tribunal is not satisfied that would eventuate.  The country information set out below does not support that.

REASONS FOR THE TRIBUNAL’S DECISION

109.   In general, the critical issue in this application is whether in the foreseeable future there is a real chance the applicant will suffer serious or significant harm if he returns to Sri Lanka based on his claims.

Assessment of refugee criterion

110.   The relevant refugee criterion is that the applicant will be a refugee and have a well-founded fear of persecution under s 5J(1) if the Tribunal is satisfied that:

a.the applicant fears being persecuted for at least one of the reasons set out in s 5J(1)(a) (race, religion, nationality, membership of a particular social group (PSG) or political opinion) (the refugee nexus); and

b.there is a real chance he would be persecuted for that reason: s 5J(1)(b).

Principles

1. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c).

2. The persecution must involve ‘serious harm’ to the person: s 5J(4)(b). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

113.   The criterion in s 5J(1)(a) also contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

Assessment of claims

114.   It is convenient to consider the applicant’s claims initially by reference to their individual components separately and then later consider the various claims made in combination or cumulatively.  These components are:

a.his race or ethnicity as a Sri Lankan Tamil;

b.his political opinion, by reasons of his perceived support for the LTTE or his membership of the PSG of perceived LTTE supporters;

c.being a failed asylum seeker if he returns to Sri Lanka, who left Sri Lanka lawfully, was visited by embassy officials in [Country 1] in 2009 and 2010 and has attended refugee and Tamil events in Australia; and

d.his mental health claims.[54]

[54]There is also apparently a late undeveloped claim relating to his physical health, namely his diabetes: see Post-hearing submissions [26]; 2024 Statement, p 7.

115.   The applicant’s representative has made detailed and lengthy submissions regarding relevant country information on Sri Lanka from various sources,[55] including the DFAT Report.[56]  The Tribunal has considered these submissions.

[55]Pre-hearing submissions, pp 8-20; Post-hearing submissions, pp 4-5.

[56]DFAT Country Information Report Sri Lanka dated 2 May 2024 (DFAT Report). 

116.   The representative has submitted that:

the country information on the ground and from other sources suggest that the situation is worse than stated in the DFAT Report. We rely on the 2024 DFAT Report as a reference point and supplement the report with country information from other reputable sources such as Human Rights Watch, Amnesty International, the International Truth and Justice Project, the UN Office of the High Commissioner for Human Rights, as well as local media sources like Tamil Guardian.  We submit that the 2024 DFAT Report does not paint a true picture of the current situation in Sri Lanka, as demonstrated by the additional sources provided for the Member’s consideration in providing further context and information.  As such, the situation in Sri Lanka has not improved since the applicant’s departure.[57]

[57]Post-hearing submissions, [18].

117.   The Tribunal does not agree that the situation in Sri Lanka ‘has not improved’ since 2009.  The sources relied upon by the representative suggest that there is still mistreatment, detention and discrimination of or against Tamils in Sri Lanka, which is consistent with the DFAT Report, as set out below.  Nevertheless, the scale, scope and frequency of such conduct is far lower and less widespread than after the war ended in 2009.

118.   Further, the representative referred to[58] criticisms of the earlier DFAT Report in 2019[59] in a UK Upper Tribunal decision[60] in 2021, to the effect that it was ‘difficult to gauge the reliability of the sources which have informed the ‘judgement and assessment’ applied to them’ in that report.  However, that decision also noted that the DFAT 2019 Report ‘does provide some useful background on issues such as monitoring within the country, the relevance of past LTTE links, and, to a more limited extent, the basis upon which the authorities may take an interest in particular returnees[61] and ‘placed appropriate weight on DFAT when evaluating the country information as a whole’.[62]  Moreover, the UK Tribunal noted that the experts in the case before it had referred to the DFAT 2019 Report in their own evidence and the report itself relied upon the evidence of one of the experts in that case.[63]  This Tribunal does not consider that the criticisms materially and generally undermine or call into question the current DFAT Report.

[58]Pre-hearing submissions, p 8 [27]; Post-hearing submissions, [17]. 

[59]DFAT Country Information Report Sri Lanka dated 4 November 2019 (DFAT 2019 Report). 

[60]KK and RS v Secretary of State for the Home Department [2021] UKUT 00130, [302] (UK Tribunal Decision).  It should be noted that these criticisms were driven by the contrast with the UK Home Office Fact-Finding Mission to Sri Lanka in 2019, which published a very lengthy Report on 20 January 2020 setting out its interviews and sources.

[61]UK Tribunal Decision, [303].

[62]UK Tribunal Decision, [304].

[63]UK Tribunal Decision, [305].

119.   In the Tribunal’s view, the information referred to by the representative does not materially and reliably displace, undermine or outweigh the information and assessments in the DFAT Report.  Its information and assessments are recent, measured and neutral (and in turn refer to some of the other sources of country information relied upon by the representative).  The Tribunal prefers and will have regard to the information and assessments in the DFAT Report as to the risks to those in the position of the applicant if he returns.  It will refer below to relevant country information from the DFAT Report as to each component of the applicant’s claims.[64]

[64]The references in square brackets below are to paragraph numbers in the DFAT Report.

120.   There were national elections in Sri Lanka on 21 September 2024, with the new left-leaning President-elect Anura Kumara Dissanayake of the National People’s Power alliance being successful, replacing the outgoing President Wickremesinghe.  There are no reports of serious unrest or problems at the time of this decision as a result of this change of government.  Its impact on the matters discussed in the country information below has not yet been made clear; but given the political orientation of the new government, the Tribunal thinks it is unlikely that it would materially adversely change the situation in Sri Lanka in the foreseeable future for persons in the position of the applicant.[65]

[65]        ‘LEFT-LEANING LEADER WINS SRI LANKA ELECTION IN POLITICAL PARADIGM SHIFT’, BBC NEWS, 22 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT ‘LEFT-LEANING ANURA DISSANAYAKE CLAIMS VICTORY IN SRI LANKA’S PRESIDENTIAL ELECTION AFTER SECOND VOTE COUNT’, ABC NEWS, 23 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT ‘CURFEW LIFTED, CHANGE ARRIVES: A FIRSTHAND VIEW OF SRI LANKA’S HISTORIC ELECTION’, LISA SINGH, LOWY INSTITUTE, ‘THE INTERPRETER’, 23 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT THE 2024 SRI LANKAN PRESIDENTIAL ELECTION WAS DECLARED PEACEFUL BY THE COMMONWEALTH OBSERVER GROUP: ACCESSED ON 11 OCTOBER 2024 AT THE EUROPEAN UNION ELECTION OBSERVATION MISSION FOR SRI LANKA (EU EOM) SAID IN A PRELIMINARY REPORT THAT OVERALL THE ELECTION PROCESS WAS CONDUCTED INDEPENDENTLY AND WITH TRANSPARENCY, THAT FUNDAMENTAL FREEDOMS WERE BROADLY RESPECTED, THAT THE ELECTION DAY WAS PEACEFUL AND FESTIVE AND THAT THE CAMPAIGN WAS PEACEFUL AND ENERGETIC: 'PRELIMINARY STATEMENT - RESPECT FOR THE DEMOCRATIC PROCESS OUTWEIGHED MINOR DEFICIENCIES IN LAW AND PRACTICE', EUROPEAN UNION ELECTION OBSERVATION MISSION SRI LANKA, EUROPEAN UNION, 23 SEPTEMBER 2024, P.1.

121.   For the purposes of this assessment, the Tribunal accepts that the applicant has a genuine subjective fear of persecution.

122.   The Tribunal also accepts for the purposes of this assessment that the applicant experienced serious harm in Sri Lanka because of the 2006 and 2007 incidents.

Claims about his race or ethnicity, as a Sri Lankan Tamil

123.   Based on the Tribunal’s findings, it accepts that the applicant is of Sri Lankan Tamil race or ethnicity.  It also accepts that this race or ethnicity (that is, Tamil ethnicity as a PSG in Sri Lanka, within the meaning of s 5L of the Act) could come within the scope of the required refugee reasons under s 5J(1)(a), if an applicant is targeted for harm for that essential and significant reason.

124.   The relevant country information for Sri Lanka in the DFAT Report on Sri Lankan Tamils discloses that:

a.Sri Lanka has a population of 22 million, of whom about 15.3 per cent were Tamil, at the last census in 2012: [2.5–2.6];

b.the Sinhalese and Tamil languages have official status, with Tamil used mostly in the north‑east: [2.8];

c.some in-country Tamil sources told DFAT the economy, not human rights, was Tamils’ core concern today: [2.21];

d.Tamils, including former militants, are politically active. A range of parties promote Tamil interests, including as part of, but not limited to, a coalition known as the Tamil National Alliance (TNA),[66] which, following 2020 parliamentary elections, held 10 seats in parliament.[67] At the time of publication of the DFAT Report, there were two Tamils in the Wickremesinghe Ministry and the Attorney-General was Tamil: [3.5];

e.President Wickremesinghe had taken a more conciliatory approach and committed to advancing reconciliation, including through the creation of a Truth and Reconciliation Commission: [3.6];

f.in-country Tamil sources told DFAT that Tamils continued to face human rights challenges, although the level of state harassment and mistreatment had decreased significantly since 2015. In-country sources said the level of state hostility toward Tamils had eased under the Wickremesinghe Government, and that Tamils did not feel as threatened. In-country Tamil sources reported the security presence at Tamil war commemorations had reduced since the change in government, although some commemorations were disrupted and arrests made in November 2023: [3.7];

g.some Tamils report discrimination in government employment, although in‑country sources attributed this to linguistic barriers rather than official policy. Some Tamils may be monitored by the state, including for their past association with the LTTE, advocacy on human rights issues and participation in protests for missing persons.  More Tamils have been detained under the Prevention of Terrorism Act (PTA) than any other ethnic group, primarily during the war.  Most have since been released: [3.8];

h.the north remains overwhelmingly Tamil, whereas the east has an almost even split between Tamils and Muslims, albeit with a sizeable Sinhalese minority: [3.10];

i.DFAT assessed that Tamils are at low risk of official discrimination on ethnic grounds, including in public sector employment.  DFAT assessed that under-representation of Tamils in the public sector is largely the result of language constraints, not official policy: [3.11];

[66]Note that the Tamil MP letter is from a Member of Parliament from this party, who has been a parliamentarian since at least 2014 based on his correspondence filed in this matter.  See footnote 36.

[67]It still does, as the next parliamentary elections in Sri Lanka are scheduled for 14 November 2024.

125.   The DFAT Report disclosed that there is some discrimination against Tamils in Sri Lanka but it did not suggest that in general such discrimination rises to the level of persecution.

Claims about his perceived membership or support of or association with the LTTE

126.   The Tribunal accepts that he was not a member or supporter of the LTTE but it does not accept he was a person of special or adverse interest to Sri Lankan authorities while he was in Sri Lanka.  While the Tribunal accepts the four incidents occurred, these occurred because of the matters outlined above.  Moreover, he was released each time and continued to live and work in Sri Lanka.  The Tribunal does not accept that he has become a person of special or adverse interest to Sri Lankan authorities since he left Sri Lanka, for the reasons outlined above and below. 

127.   It accepts that if he were perceived as being associated with the LTTE, that could come within the scope of the required refugee reasons under s 5J(1)(a), as having an imputed political opinion or being a member of a PSG in Sri Lanka of perceived LTTE supporters, (within the meaning of s 5L of the Act), if the applicant were targeted for harm for that essential and significant reason.

128.   The relevant country information for Sri Lanka in the DFAT Report on relevant LTTE‑based issues discloses that:

a.during the civil war, many Tamils were monitored, harassed, arrested and/or detained by security forces, particularly in the north-east.  While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner: [3.12];

b.LTTE members, both combatants and those who performed administrative, non‑combat functions, were detained on a large scale at the end of the war in 2009. Most were sent to government-run rehabilitation centres. The majority of former LTTE members who were detained have since been released. The number of Tamils who remain in prison in connection to the civil war is small.  Former LTTE members can access state services and face no legal barriers to participating in public life, including politics, and have previously contested elections: [3.74] (underlining added);

[70]DFAT Report, [2.34-2.41] as to physical health services.  The public health system is free for all Sri Lankan citizens and medicines can be accessed free of charge from government-run hospitals in all provinces: [2.34]; DFAT assesses there is no discrimination on the basis of ethnicity or religion in accessing healthcare in Sri Lanka. DFAT assesses that acute pressures on the health system created by the economic crisis have abated and shortages of medical items have eased: [2.41].

135.   The representative submitted that the applicant faces a real chance of serious harm if he returns because:

a.he is suspected of former LTTE involvement or other activities perceived to be in opposition to the Sri Lankan government and because of his Tamil ethnicity. As a failed asylum seeker returnee, with past records of interrogation and confrontation with Sri Lankan authorities on at least two occasions, he would be easily identified, detained, and killed. If he is forced to return, he would attract adverse attention as he has been overseas for 15 years;[71] and

b.… the Member should take the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm, especially if it is accepted that the applicant was detained, interrogated, and tortured on at least two occasions by the army in Jaffna in 2006 and in Colombo in 2007, he was arrested and questioned by police in Jaffna in 2006 and in 2009 in Colombo, and he was questioned by Sri Lankan Sinhalese embassy officials in [Country 1].[72]

[71]Pre-hearing submissions, [15] (page 5).

[72]Post-hearing submissions, p 6, [24].

136.   In the Tribunal’s view, these submissions overstate the risk to the applicant.  Based on the Tribunal’s findings, the country information discussed above does not suggest that the applicant faces anything more than a low risk of monitoring, detention or other harm if he returns.  He left Sri Lanka lawfully.  It is significant that he departed and returned there on nine occasions between 2007 and 2009 without problems with the authorities.  His earlier detentions were during the civil war and ceased in 2009.  They did not occur because of anything he did, but because of his ethnicity, provenance, residence, proximity to trouble or just as an unfortunate part of a raging civil war.  He was also then released each time.  The Tribunal is not persuaded that the applicant would now or in the foreseeable future be suspected or regarded as being an LTTE member, associate or supporter, even at a low level, based on his past in Sri Lanka.

137.   The Tribunal is not satisfied that he is now or in the foreseeable future of any continuing interest to Sri Lankan authorities because of any perceived involvement with the LTTE, even at a low level.  The facts that he is of a certain age, a Tamil, and is from the Northern Province do not materially change this.  He lived in government or army-controlled areas while in Sri Lanka, not in LTTE-controlled areas (near Jaffna, in Colombo).  His attendance at some refugee or Tamil events in Australia also does not change this.  His family in Sri Lanka have not suffered harm there as Tamils, despite their relationship with him.

138.   As to his return as a failed asylum seeker, the DFAT information above on the approximately 1,900 returnees and their experience is compelling, apart from the other matters summarised above.  In the Tribunal’s view, any risks the applicant might face of serious harm upon return as a failed asylum seeker are low.

139.   Moreover, as to the applicant’s refugee and Tamil commemorative activity in Australia, this has been intermittent and is at a low level.  He was an attendee; he did not claim to be an organiser.  He did not claim to have kept up with Sri Lankan politics.  He did not claim to be an activist for Tamil separatism.  His mere presence at a recent refugee event in 2023 and at other Tamil commemorative events is not enough to make him a person of interest to Sri Lankan authorities.  The country information referred to above even suggests a more permissive attitude recently in Sri Lanka towards some commemorative activities.  He does not claim to be a leading or prominent member of any Tamil diaspora group.  The Tribunal is not satisfied that he would be targeted for any mistreatment by Sri Lankan authorities by reason of his Australian activities upon his return or because of a prolonged absence.  Even in combination with his ethnicity and alleged suspicion of LTTE links, the risk to the applicant of serious harm from others if he returns is low.

140.   A subjective fear on the part of an asylum seeker does not convert non-persecution into persecution.[73]  Similarly, the prospective psychological impact of past persecution, such as the stress associated with non-persecutory monitoring and questioning on return to a country, does not elevate monitoring and questioning into persecutory conduct.[74]  However, when assessing whether discrimination faced by an applicant amounts to ‘serious harm’, all relevant circumstances must be taken into account, including personal circumstances such as the applicant’s age and frailty.[75]  Based on the psychiatric reports as accepted, the country information, its assessment of the applicant’s credibility and its findings, the Tribunal is not satisfied that the applicant’s mental vulnerabilities elevate the risk and harm he could face if he returns to Sri Lanka to a real chance of serious harm.

[73]Prahastono v MIMA (1997) 77 FCR 260 at 269, 271.

[74]WAKZ v MIMIA [2005] FCA 1065 at [45]–[49]; DJX17 v MICMA [2022] FedCFamC2G 917 at [34]–[39]. A well-founded fear of persecution must be assessed objectively: WAHK v MIMI [2004] FCAFC 12, at [14].

[75]AGA16 v MIBP [2018] FCA 628 at [35]; the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497 at [153].

141.   The civil war ended over 15 years ago.  The most significant incidents the applicant experienced were even earlier, in 2006 and 2007.  The country information suggests that the situation generally has improved considerably and materially for Tamils in the Northern Province and those suspected of LTTE connections or support (which categories overlap considerably).  It also suggests that Tamils who return from abroad as failed asylum seekers do not face substantial risks of harm.  The applicant’s history, circumstances and situation do not alter that.  In the Tribunal’s view, the risk that he will suffer serious harm from others if he returns is remote.

142.   For the reasons set out above, the Tribunal is not satisfied that the applicant’s claims and profile (as accepted), considered in combination, over time and cumulatively, would mean  that there is a real chance he would suffer serious harm in the foreseeable future if he returned to Sri Lanka.  The Tribunal considers that any such risk to the applicant from others if he returns is remote.

Conclusion on refugee criterion

143.   Based on the material before it and for the reasons set out above, the Tribunal is not satisfied that there is a real chance that in the foreseeable future the applicant would suffer serious harm because of these claims (considered separately, cumulatively and over time) if he returned to Sri Lanka.

144.   Accordingly, for the above reasons, the Tribunal is not satisfied that the applicant:

a.is a refugee within the meaning of s 5H;

b.has a well-founded fear of persecution within the meaning of s 5J(1); and

c.is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Assessment of complementary protection criterion

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa).

146.   In considering the complementary protection criterion, the Tribunal must consider whether the applicant will suffer ‘significant harm’ which is exhaustively defined in s 36(2A) of the Act. This requires that harm be arbitrary deprivation of life, infliction of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment of the applicant.

147.   In Minister for Immigration and Citizenship v SZQRB, the Full Federal Court held[76] that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.

[76] [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

148.   The Tribunal accepts for the purposes of this assessment that the applicant experienced significant harm in Sri Lanka because of the 2006 and 2007 incidents.

149.   Based on its findings and by similar reasoning to that set out above (except when addressing the specific refugee criteria of ‘serious harm’ which do not apply to the complementary protection criterion, with ‘significant harm’ instead being required), it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm, as required by s 36(2)(aa) because:

a.as to his ethnicity claims, the Tribunal is not satisfied that there is a real risk he will suffer significant harm because of these claims;

b.as to his LTTE-based claims, the Tribunal is not satisfied that there is a real risk he will suffer significant harm because of these claims;

c.as to his failed asylum seeker and Australian activity claims, the Tribunal is not satisfied that there is a real risk he will suffer significant harm because of these claims; and

d.as to his mental (or physical) health claims: his psychological condition as accepted does not meet the requirements of significant harm; similarly for his diabetes; there is no third party who would intentionally inflict such harm on him; and the Tribunal is not satisfied that there is a real risk he will suffer significant harm because of it;

e.based on the country information discussed and for the reasons set out above, the Tribunal is not satisfied that there is a real chance the applicant will suffer significant harm because of these claims, considered separately, together and over time.

150.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

151.   The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Referral for Ministerial intervention

152.   The applicant has requested that the Tribunal refer the case to the Department for possible consideration by the Minister pursuant to s 351 of the Act[77] which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

[77]Formerly, s 417 of the Act.

153.   The applicant’s request is that his case be referred because it exhibits:

one or more unique or exceptional circumstances in accordance with the Ministerial Guidelines.  As detailed in the pre-hearing submissions, the unique and exceptional circumstances are that the application of relevant legislation leads to unfair or unreasonable results, and there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant's physical or mental health, especially in view of the fact that the applicant has spent over 14 years in Australia.[78]

[78]Post-hearing submissions, [28].

1. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417, and s 501J)’.  It has decided not to refer the matter, as it is not satisfied that the circumstances advanced are ‘unique or exceptional’ within the scope of Article 4 of the guidelines, when considered in the light of its reasons. Moreover, apart from the length of time the applicant has spent in Australia and his evidence of working here, the applicant has not put before the Tribunal any other information as to ‘the level and nature of [his] integration into the Australian community’ provided for in Article 5 of the guidelines.  The Tribunal notes that the applicant can still make a request directly to the Minister.

   Assessment of family member

2. 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).

   Protection in another country

156.   There is no material before the Tribunal to indicate that the applicant presently has any right to enter and reside in any other country, apart from his country of nationality, Sri Lanka. Accordingly, s 36(3) of the Act does not apply in this case.

Conclusion

157.   For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicant pursuant to s 36(2) of the Act.

DECISION

158.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Garry Fitzgerald SC

General Member

ATTACHMENT 1

DOCUMENTS FILED WITH THE TRIBUNAL BY THE APPLICANT
BEFORE AND AFTER THE HEARING ON 12 JULY 2024 AND FOR THE REVIEW

Date filed	Document	Pages	Description	Defined as
3 July 2024	Email from representative to the Tribunal	36 pages	Email (1 page) attaching: 1.   Submissions of representative dated 1 July 2024 (28 pages) (Pre-hearing submissions) 2.   Psychiatric Report dated 14 June 2024 (2 pages) (Psychiatrist’s 2024 report) 3.   The Medical Report of the applicant’s mother (1 page) 4.   Psychiatrist’s Report dated 9 May 2019 (2 pages) (Psychiatrist’s 2019 report) 5.     Psychiatrist’s Report dated 30 June 2014 (3 pages) (Psychiatrist’s 2014 report)	Pre-hearing documents
9 August 2024	Email from representative to the Tribunal	40 pages	Email (1 page) attaching: 1.   Post-hearing submissions of representative dated 8 August 2024 (9 pages) (Post-hearing submissions) 2.   Applicant’s undated statement (8 pages) (2024 Statement) 3.   Supporting letter from the Applicant’s brother in Tamil (4 pages) 4.   Supporting letter from the Applicant’s brother in English (2 pages) (Brother’s letter) 5.   Photographs at the Parliament House Canberra protest on 17 October 2023 (2 pages) 6.   Screenshots at the Parliament House Canberra protest on 17 October 2023 (4 pages) 7.   Psychiatrist’s addendum dated 22 July 2024 (1 page) (Psychiatrist’s July 2024 letter) 8.   Letter from a Tamil Member of Parliament in Sri Lanka (Tamil MP letter) (1 page) 9.   Medication and blood test of the Applicant (6 pages) 10.   Photographs of the Applicant’s mother (2 pages)	Post-hearing  documents

ATTACHMENT  2  -  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.

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36         Protection visas – criteria provided for by this Act

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(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.

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