1931786 (Refugee)

This case concerned an application for a Protection (Class XA) (Subclass 866) visa by a Sri Lankan national. The applicant, a Tamil Hindu businessman from the Batticaloa District, claimed he faced a real chance of serious harm upon return to Sri Lanka due to threats from the Tamil Makkal Viduthalai Pulikal (TMVP) and an imputed political opinion as a perceived supporter of the Liberation Tigers of Tamil Eelam (LTTE). The applicant had illegally departed Sri Lanka in 2012 after an alleged dispute with a local TMVP leader over furniture for the TMVP premises, which he refused to provide for free. He claimed subsequent harassment and fear for his safety, leading him to go into hiding before travelling to Australia. The decision under review was made by a delegate who found the applicant's claims of harassment from the TMVP to be supported by country information but found the specific details of the events prompting his departure to lack credibility.

The court was required to determine whether the applicant faced a real chance of suffering significant harm if returned to Sri Lanka, considering his claims of persecution as a Tamil businessman in a paramilitary-controlled area and his imputed political opinion. This involved assessing the credibility of the applicant's narrative regarding the threats and harassment by the TMVP, and whether any such threats were sufficiently serious and likely to be carried out. The court also had to consider the provisions of section 36(2B) of the Act, which outline circumstances where a real risk of significant harm is not taken to exist, such as where relocation to a safer area is reasonable, or where the risk is faced by the general population and not personally by the applicant.

The court considered various country information reports, including those from DFAT and the Office of the United Nations High Commissioner for Human Rights, as well as Ministerial Direction No. 84. While the delegate accepted the general basis of the applicant's claims regarding TMVP harassment, she found specific details of the events lacked credibility, particularly the applicant's ability to evade the TMVP while living and working openly, and the absence of harm to his wife and child. The delegate concluded that the threats were likely "empty" and that the TMVP would have been able to locate the applicant if they had genuinely intended to harm him. The court, however, found that the delegate had not adequately considered the cumulative effect of the applicant's claims and the potential for harm, particularly in light of the applicant's assertion that the dispute was about "respect" rather than just the value of the furniture.

The court found that the delegate's assessment of credibility was flawed and that the decision under review should be remitted. The court directed that the matter be reconsidered, with a proper assessment of the applicant's claims, including the potential for harm arising from his membership in a particular social group as a Tamil businessman and his imputed political opinion, and the cumulative effect of these factors.