1932592 (Refugee)

1932592 (Refugee) [2024] AATA 4306 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Raveendran Selvadurai (MARN: 9802451)
CASE NUMBER:  1932592
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Sean Baker
DATE:17 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 September 2024 at 2:08pm
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – Tamil race – imputed political opinion – real or perceived links to the LTTE – a Tamil from a former LTTE controlled area – religion – Catholic – a particular social group – a failed asylum seeker – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Sri Lanka. He applied for the visa on 9 August 2019. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant would face harm on return on the facts accepted by the delegate and on the basis of the applicant’s real or perceived links to the LTTE, for being a Tamil from a former LTTE controlled area or being a failed Tamil asylum seeker.
Claims
The applicant is a [age]-year-old Tamil man. He was born and lived most of his life in [City 1], Sri Lanka. He comes from a strong Catholic family and is a devout Catholic.
Claims made in his statutory declaration accompanying his application:
·     From an early age, he grew up devoting much of his time to his religious activities.
·     When he was young the war between Tamils and Sinhalese forces raged in his area. The Priests assisted the applicant and his sisters with their studies and gave them aid. The applicant also went with the Priests to assist people affected by the war. He was forced to abandon his studies because of the war and became a vegetable seller at the market.
·     He belonged to the parish at [Village 1] and attended most of the activities that took place at [Church 1], including the Sunday masses. He learnt and became very knowledgeable in his religion. Because of this he was asked to teach young school children on weekends and attended other churches in the area with the Priests and regularly visited Catholic families in adjacent villages, as well as refugee camps during the ceasefire, where he taught them about Christ.
·     When the war resumed after the ceasefire, he once again went with the Priests and helped people including LTTE cadres. They gave them whatever assistance they could including transporting them and providing them with supplies.
·     On 28 January 2010 after the end of the war some people came in a vehicle to his family home where they threatened his parents and the applicant if he did not stop his work with the Church and helping Tigers.
·     On 30 January at approximately 11.00pm people again went to his house and threatened his mother. However, he had left the home for a few days on the advice of his family. His mother, being concerned for his safety, approached the [Organisation 1] [City 1] and lodged a formal complaint.
·     Some of the nearby villages had Muslim majorities. When he visited these villages to meet the Church congregations, he would be the subject of intimidation, assault and humiliating checks by the Muslim Home Guards. The Muslims believed the applicant wanted to convert people to his faith.
·     He took a break to nurse some injuries and went on a pilgrimage to India in September/October 2018.
·     The applicant organised carols in nearby villages which upset some Muslim groups who boycotted the carols and harassed and intimidated the applicant.
·     On 22 December 2018 the applicant attended a carol service and returned home through [Village 2]. He was intercepted by a group of four Muslim men and attacked. He was threatened for having challenged Muslim men and their attempts to marry women of other religions (and thus convert them to Islam). He was told not to come through those villages again after he had been beaten.
·     He went to the police station to make a complaint where he was told not to waste their time and told he was lucky to be alive before he went to the hospital to receive treatment
·     On 5 April 2019 when returning from a religious procession he was again intercepted by some Muslim men who pulled his hair, slapped him and punched him repeatedly. He was forced to the ground and two men pulled their penises out and forced them in his mouth.
·     On 25 April 2019, after the Easter bombings a group of 5 or 6 Muslim radicals came to his home in a van and entered the house before assaulting him and his parents. They then removed the religious paraphernalia outside the front of the house before burning it. The applicant was hospitalised for 5 days.
·     During the attack the men said that it was not an attack by Muslims on him but by true Sri Lankans who knew he had been helping the LTTE in the area. He was very afraid of these threats as he was aware that the security forces and the Tamil militant groups that supported them always suspected church workers and the church itself of providing support and cover to the Tamil Tigers.
The following documents were provided with the application:
·     His Birth certificate and Sri Lankan identity card.
·     An extract from the false passport with which he entered Australia.
·     Two letters dated 18 and 27 June 2019 from Father [A] of [Church 1] [Village 1], [City 1].
·     A medical certificate [dated] 1 May 2019
·     A Letter from the [Organisation 1] of Sri Lanka dated 08 February 2010
·     The applicant’s Certificate of Holy Communion
The applicant travelled to Australia on a false passport.
Further documents were provided to the Department including:
·     a letter from the Grama Niladhari (village officer) confirming the applicant has resided in his municipality up until his departure from Sri Lanka
·     a religious flyer with a picture of the applicant
·     several undated images asserted to be evidence of the applicant’s house being ransacked and parents injured.
A post interview submission was provided to the Department. This submission sought to confirm the claims previously submitted by the applicant and contested concerns regarding the veracity of his claims raised with the applicant at interview. The submission included excerpts of country information, including the most recent DFAT report, highlighting the plight of Tamils imputed with LTTE association. Reference was made to the difficulties faced by minority religious groups in Sri Lanka, particularly in the wake of the Easter bombings of 2019. It was asserted by the applicant’s representative that these bombings gave impetus to Muslims to challenge the religious minorities within their regions. It was also claimed that because the applicant departed illegally, his identity will be questioned for background checks, such checks will reveal his imputation with the LTTE, and he is likely to be detained.
The delegate accepted that the applicant was a Tamil male of Roman Catholic faith from [City 1] who had been involved in Church activities and assistance to various people including LTTE cadres. It was accepted that the applicant suffered harassment from Muslims in villages near his home.
The delegate found that the applicant was never a member of, involved with or associated to the LTTE. The delegate found that the applicant departed Sri Lanka lawfully using his original Sri Lankan passport, however, used a fraudulent passport connected to an identity holding an Australian visa to board a plane to Australia. The delegate did not accept that the applicant was the subject of any significant adverse attention from the local Muslim population after 2010. The delegate did not accept that the applicant was the subject of adverse attention based on suspicion of involvement / support of the LTTE in 2019 or at any other time.
The delegate refused the application on the basis that they had considered his claims to face harm due to his involvement with unknowingly providing LTTE cadres assistance at the end of the war, his place of origin in Sri Lanka, his Tamil race, and his returning as a failed asylum seeker and found there was no real chance or real risk he would face harm, whether on arrival at Colombo airport or on return to his place of origin in [City 1].
The applicant sought review. He provided a copy of the delegate’s decision to the Tribunal.
On 3 June 2024 a short submission was provided in which the representative stated that the applicant would rely on the regular evidence from the country regarding the continued monitoring and practice of targeted surveillance and questioning of individuals. It was argued that the police and intelligence have established a network and coordinate with informants to identify people in Tamil areas of the North and East who have not present to identify their whereabouts. It was claimed that the targeted groups are Christians and Muslims and that the Muslims co-operate with security forces targeting the Tamils at village level for their safety. The applicant also claimed that after he fled the country, unidentified persons accosted his [sister], [Ms B], inquiring about the applicant and threatened her. Because of this, his sister left for Colombo in 2020, sought shelter with a friend and has gotten married in Colombo without returning to the village.
The representative provided the DFAT 2024 report in full.
Prior to the hearing a letter from the Parish Priest, Father [C] dated 4 July 2024 and an Affidavit signed by the Applicant's [sister], [Ms B] were provided.
The applicant appeared before the Tribunal on 19 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will be persecuted, or a real risk he will suffer significant harm, if he returns to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Consideration
Claims about the past
I have had regard to the written claims of the applicant as well as his evidence at the hearing and the evidence at hearing of his [sister], all of which was largely consistent.
As did the delegate, I accept the applicant is a Tamil and was born into a Catholic family and is a devout Catholic and I accept that he assisted the Church and Priests of the Church in a variety of activities. I accept that some of these activities brought the applicant into conflict with Muslim people in neighbouring villages. I accept that the applicant provided some support to LTTE cadres prior to and in the immediate aftermath of the war. I note that these claims are consistent with available country information about the Catholic Church and its activities during the war.
I am prepared to accept that some people came looking for the applicant at his home in January 2010 and his family were concerned enough that they reported this to the [Organisation 1] [City 1] office.
At the hearing the applicant claimed that immediately after the war, in the camps in 2010 and 2011, the authorities would interrogate people and shoot them and there were many unclaimed bodies and the Church fathers took those bodies and cremated them and the applicant helped. The army or intelligence had accused him of burning the bodies of LTTE combatants. I am prepared to accept that there was an imputation that the Fathers and the applicant were burning the bodies of LTTE combatants around 2010/2011. However, I find that the applicant has not claimed, and I do not accept, that he experienced any difficulties or was questioned or monitored or harassed by the authorities for these imputations or for any other reason.
I am prepared to accept that between this time and 2018 there may have been some low-level conflict and harassment with Muslim people.
I am prepared to accept that on 22 December 2018 the applicant was beaten and threatened by a group of Muslim men in [Village 2], a local village. I accept that he went to the police station but they were not interested, and I accept that he had to have medical treatment.
I am prepared to accept that on 5 April 2019 he was beaten, sexually assaulted and threatened by a group of Muslim men.
I have very considerable doubts that the claimed assault on the applicant and his parents on 25 April 2019 occurred as claimed, even taking into account the photos which do not clearly indicate what has occurred. This is because at this time there was a declared state of emergency, and curfews throughout Sri Lanka in the wake of anti-Muslim riots,[1] and there was a significant backlash against the Muslim community.[2] I think the likelihood of the local Muslims pursuing their harassment of the applicant at this time to be unlikely. However, the applicant has been consistent about this claim and I do not have a firm basis to disbelieve that this occurred. I therefore am prepared to accept that the applicant and his parents were assaulted by 5 or 6 Muslim men and their religious icons were burnt. I accept that the applicant was hospitalised for 5 days.
[1] The Guardian, ‘Sri Lanka imposes curfew after at least 207 killed in attacks’, 21 April 2019, Sri Lanka imposes curfew after at least 207 killed in attacks | Sri Lanka attacks | The Guardian; Aljazeera, ‘Curfew imposed after religious tension rises in Negombo’ 6 May 2019, Curfew imposed after religious tension rises in Negombo | Sri Lanka Bombing News | Al Jazeera
[2] Siddiqui; Nozell, ‘Two Years After Easter Attacks, Sri Lanka’s Muslims Face Backlash’, United States Institute of Peace, 29 April 2021, Two Years After Easter Attacks, Sri Lanka’s Muslims Face Backlash | United States Institute of Peace (usip.org).
I have further doubts that during this attack the men said it was not an attack by Muslims on him but by true Sri Lankans who knew he had been helping the LTTE in the area. This was some ten years after the end of the war, and approximately the same time since the applicant had given any material aid to LTTE or former LTTE cadres. I do not accept that the Muslim men said this or intimated anything like this during this attack or any other. I find on what the applicant has claimed that I have accepted that the Muslim assailants during this and previous assaults were upset at the applicant for his activities with the Catholic Church which took the applicant to their village, and that their reasons for harming the applicant were for these reasons and not any other reasons connected with his ethnicity nor his actual or imputed historical connections with the LTTE.
I have considered the reasoning of the delegate that the applicant is likely to have departed Sri Lanka on his own, genuine passport but I do not consider that this is a sufficient basis to make this finding with certainty. I am prepared to accept that the applicant travelled out of and entered Australia on a false passport as he has claimed.
The applicant claimed that there were 2-3 people who he had worked with the Church and they had disappeared and no one knows what has happened to them. The applicant was not clear about when this occurred, who these people were, or whether their situation was analogous to the applicant in all respects or only that they also happened to work for the Church. I find on the information before me that I do not accept that these disappearances, if they have occurred, have a bearing on the situation of the applicant.
I accept, from the applicant’s sister’s evidence, that she moved to Colombo in 2019 or 2020 after being threatened and made to feel uncomfortable by people asking after her brother, the applicant. I accept that she got married last year and her parents did not attend the marriage because she was afraid that these people asking after her brother would find out that she had relocated to Colombo. When asked why these people would want to find out where she was living the witness did not directly respond but intimated that the informers were asking about her family and want to know about the family. She also said that if her parents left the house and go somewhere else that the family home would be occupied, and they would not be able to get the house back.
Country information

As I put to the applicant at hearing, the situation in Sri Lanka has changed considerably since he departed the country and has changed considerably since the end of the war.
Relevantly to the applicant’s claims, I discussed with the applicant the assessment of DFAT that Christians, particularly Catholics, face a low risk of official or societal discrimination, especially in urban areas, and that notwithstanding the April 2019 Easter attacks, face a low risk of violence from Muslims.[3] The applicant disputed this, saying that the Easter 2019 attacks were against Catholics, and this had not happened to any other religion.
[3] DFAT Country Information Report Sri Lanka, 2 May 2024 at 3.40 – 3.47.
I noted that the government had reported that the Islamist groups associated with that attack had been neutralised.[4] The applicant said that those groups still existed, and the affected people had only been Catholics.
[4] DFAT Country Information Report Sri Lanka, 2 May 2024 at 2.70.
I also noted to the applicant that whilst I understood that there had been use by the authorities of Muslim Home Guards during the civil war, I did not think that it was supported in the country information to claim that there had been significant collaboration between the government and Muslim groups post the civil war, indeed there was information that from 2011 Sinhalese nationalists targeted Muslims at large.[5] I noted that DFAT assessed that Muslims face a moderate risk of official and societal discrimination, in the form of harassment and monitoring by security forces and organised disinformation campaigns by Sinhalese nationalist groups, and that Muslims suspected of extremist views and/or association with groups deemed to be extremist face a high risk of monitoring, arrest and detention, including under the PTA.[6] The applicant responded that he was not referring to all Muslims, there were extremists in [City 1], he was fearful of those groups.
[5] International Crisis Group, ‘After Sri Lanka’s Easter Bombings: Reducing Risks of Future Violence’, 27 September 2019, Hoole, R., ‘Sri Lanka’s Easter Tragedy Through The Eyes Of Dissent’, Colombo Telegraph, 15 May 2019, Sri Lanka’s Easter Tragedy Through The Eyes Of Dissent - Colombo Telegraph.
[6] DFAT Country Information Report Sri Lanka, 2 May 2024 at 3.29 – 3.39.
I then turned to discuss his claim that he would be imputed with pro-LTTE views because he had assisted people including LTTE cadres and had been accused or associated with fathers who cremated the dead from camps and were accused of cremating LTTE fighters by the authorities.
I noted firstly that the applicant had not claimed to have had difficulties with the authorities, but only with Muslims and Muslim groups who he believed to be Muslim Home Guard, and noted that the country information indicated that Tamils, including those who lived in the North where the applicant lived, faced a low risk of monitoring, harassment, arrest and detention. Issues which might lead to a greater chance of a person being monitored or harassed included if they were suspected of promoting Tamil statehood, engaged in politically sensitive issues related to human rights or the war, and Tamils who previously belonged to the LTTE.[7] I noted that former LTTE members were mostly known to the authorities,[8] and that there is an understanding that ‘everybody’ in the north-east had at least some connection with the LTTE.[9]
[7] DFAT Country Information Report Sri Lanka, 2 May 2024 at 3.4 – 3.16; United States Department of State 2023 Country Reports on Human Rights Practices - Sri Lanka, Section 6.
[8] DFAT Country Information Report Sri Lanka, 2 May 2024 at 3.80.
[9] DFAT Country Information Report Sri Lanka, 2 May 2024 at 3.93.
I explained that this information might lead me to doubt that the applicant would be harmed by the authorities or imputed with an LTTE connection for his past actions because the information indicated that the authorities had no interest in people with historical, low-level links to the LTTE and they had already vetted Tamils who were involved with the LTTE after the war.
The applicant responded that there is no big or small involvement, if a person is connected with the LTTE the authorities suspect they will do something. The applicant said that an informer cadre was arrested, and he has been missing.
I discussed with the applicant the situation for failed asylum seeker returnees to Sri Lanka. I noted that I was prepared to accept that he had departed on a false passport as he had claimed. I noted that the country information indicated that departing Sri Lanka without a valid passport was an offence, and that I accepted he would be charged and prosecuted for unlawful departure, but that this process would involve him being questioned at the airport by a range of agencies as a failed asylum seeker who departed unlawfully, and the information was that people were not harmed in this process, he would then be charged with unlawful departure by the CID, and taken to the court at Negombo and bailed, without a need for payment, and would then be free to go. He would have to return to court periodically and on being convicted would be liable for a fine of LKR 50,000 which can be paid in instalments. I noted that in the entirety of this process DFAT was not aware of people being subjected to mistreatment.[10] I noted that I may consider that this process would not lead to the applicant being harmed.
[10] DFAT Country Information Report Sri Lanka, 2 May 2024 at 5.36 – 5.52.
The applicant said that I was telling him these were the laws but if he were to return he will not go though all these processes as they will never let him live. He said that many people who returned have not been allowed to live.
Is there a real chance the applicant will be persecuted on return to Sri Lanka?
The applicant claims to fear the Muslim people who assaulted him and who assaulted his parents and have questioned his sister. He claims that these Muslim people are still looking for him. He claimed that the Muslim people have the support of the army and intelligence and that he has a name as someone who helped the LTTE.
I have accepted, above, the past instances of harm to the applicant and his parents. I find that the applicant has been harassed, assaulted, including sexually assaulted and his parents have been assaulted and their house ransacked, by Muslim people who are upset at the applicant’s activities with the [City 1] Catholic Church which has taken him to their villages.
But I do not accept that these Muslim people are associated with, working for or with or have any connection with the army and intelligence or any authorities in Sri Lanka. The country information very clear establishes that the Muslim Home Guard are not an extant force, and have not been for some time, and that Muslims are viewed by the authorities with significant suspicion, prior to and certainly after the Easter attacks in 2019, and the authorities monitor and detain Muslim people suspected of being extremists. I reject the applicant’s claims that the Muslim people harassing him and his family have any connection to the authorities.
I do accept that if the applicant returned to [City 1] where he previously lived, he would continue his activities with the Catholic Church there and this would once more lead to conflict with Muslims in the surrounding villages, and the chance, which is not remote, that the applicant may be harassed and harmed by Muslim people on the basis of his Catholic faith and activities which he has and would in the future carry out with the Catholic Church of [City 1]. I accept that the essentially and significant reason for the harm would be his religion and that the harm would constitute serious harm. I accept that the applicant faces harm from non-state actors, being Muslim people in villages near his own village in [City 1]. I accept that the applicant would not be able to access effective protection given the poor policing in Sri Lanka and the failure in he past of the authorities to protect him.
I do not accept that the applicant will face a real chance of harm on the basis of his ethnicity as a Tamil, his actual or imputed association with the LTTE, or for any other reason, including his religion as a Catholic, from the authorities or any else for the following reasons.
The claims of the applicant which I have accepted above demonstrate that the harm he and his family have experienced in the past is due to their Catholic religion and the applicant’s activities for the Catholic Church. On the basis of what I have accepted and the country information above, I do not accept that there is a real chance the applicant will be harmed for reasons of his Tamil ethnicity or his actual or imputed LTTE association, or as a failed asylum seeker who departed unlawfully by the authorities or anyone else if he returns to Sri Lanka. Whilst Tamils face some discrimination, and this is markedly the case in the North, I find that this does not reach the level of serious harm. I find that the applicant has had no interactions with the authorities and that this establishes clearly that he is not suspected of LTTE involvement, for which he would have been monitored and/or detained in the past, after the end of the war, the fact that he was not indicates that he is of no interest to the authorities in Sri Lanka, even accepting his past actions and associations with the LTTE (many of which would have been shared by all or most Tamils in the North), and the country information indicates that for such Tamils, there is only a low chance, which I consider in his circumstances remote, that he would be monitored or questioned or harassed for his past, historical actions associating him with the LTTE, now or in the reasonably foreseeable future.
Nor do I accept, on the country information, that the applicant will face any chance of harm from the authorities for reasons of his Catholic faith or activities with the Church.
On the country information I find that the applicant will be questioned on return and charged and convicted and fined with unlawful departure, but I find this is not serious harm and that the applicant will not be harmed in this process nor face any other harm as a failed asylum seeker who departed unlawfully. I do not accept, on the country information, that his identity will be questioned for background checks and that these checks will reveal his actual or imputed involvement with the LTTE, because as above I do not accept that the authorities have any interest in the applicant’s historical actual or imputed involvement with the LTTE.
I have considered the applicant’s claims cumulatively and I find that there is no real chance he will be harmed by the authorities for reasons of his Tamil ethnicity, Catholic faith and activities, historical actual or imputed LTTE association and as a failed asylum seeker who departed unlawfully, cumulatively.
I find therefore that the only chance of the applicant being harmed on return which is not remote is the real chance he will be harmed by Muslim villagers near his village in [City 1] because of his Catholic activities in those villages and his Catholic faith.
I have considered whether the real chance which I have accepted relates to all areas of Sri Lanka. It does not. I find that if the applicant were to live in Colombo, where his sister lives, he would not be harmed by the Muslim villagers near his village of [City 1]. I understand that the applicant and his sister and his parents have a strong subjective fear that the Muslim people from nearby their family home would seek to find the applicant and harm him if he lived in Colombo, as the applicant’s sister fears they would seek to harm her if they found out she lived in Colombo, but I find that there is no objective basis for their fears. I find that these Muslim people have harmed the applicant and the applicant’s parents, and threatened and harassed his sister, because of the applicant’s Catholic activities in their villages, and that there is no objective basis to find that these Muslim people would be motivated or interested to travel to Colombo to harm the applicant or his sister, now or in the reasonably foreseeable future. The applicant claims that if he relocated to Colombo that his parents would come to him because they are elderly, and then the people interested in the applicant would come and harm the applicant. on the above reasoning, I do not accept this claim. Even if the applicant’s parents wished to also come and live in Colombo, I do not accept that the Muslim people would be motivated or interested to travel to Colombo to harm the applicant, his parents or his sister.
I have also considered whether the applicant would be harmed by Muslims or anyone else in Colombo on the basis of him practicing his Catholic faith, but I find that he will not, the country information is that people are able to practice their Catholic faith, including undertaking activities, without harm, particularly in urban areas. The information supports that Colombo, as an urban area, would largely be more tolerant of the applicant practicing his faith and undertaking activities for the Catholic church than the rural areas near [City 1], and I find that the applicant will be able to practice his faith and undertake activities for the [Catholic] Church with no real chance of harm.
Nor would the relocation lead to a chance of harm on the basis of his other claims, being his Tamil ethnicity or his actual or imputed LTTE association, or as a failed asylum seeker who departed unlawfully by the authorities or anyone else on the basis of my reasoning above.
I find that if the applicant lived in Colombo there is no real chance that he would be harmed by the Muslim villagers near his home of [City 1] nor anyone else.
I raised with the applicant that the country information indicates that there are no official barriers to relocation and people relocate freely, particularly to Colombo.[11] I find that Colombo is safe for human habitation and that the applicant would be able to safely travel there after arriving in the country.
[11] DFAT Country Information Report Sri Lanka, 2 May 2024 at 5.31.
On this basis I find that there is no real chance that the applicant will be persecuted on return to Sri Lanka.
Is there a real risk the applicant will suffer significant harm if he is removed from Australia to Sri Lanka?
I have accepted above that there is a real chance the applicant will suffer serious harm from Muslim people in villages nearby [City 1] if he returns to [City 1], as he will resume his activities for the Catholic Church there and this will bring him into conflict with the Muslim villager nearby. I accept therefore that there is a real risk he will suffer significant harm on the same basis.
I have found above that there is no real chance he will suffer harm from anyone else on any other basis. On the same reasoning I find that there is no real risk he will suffer significant harm on any other basis.
I have considered if the applicant can relocate within Sri Lanka to avoid the claimed harm. I find that he can, and that the relocation will lead to there being no real risk he will suffer harm, and that the relocation would be reasonable in the circumstances of the applicant.
Firstly I have considered whether there is a real risk the applicant would suffer significant harm from the Muslim villagers near [City 1] or anyone else if he relocated to Colombo. I find that there is not. I find this on the basis of the reasoning above that the Muslim people in villages near [City 1] will not be motivated or interested to travel to Colombo to harm the applicant, his sister, or his parents if his parents choose to also relocate to Colombo. I have also considered whether there is a real risk he will be harmed by anyone else if he relocated to Colombo. On the information before me I find that there is no real risk he will be harmed by anyone else, neither the authorities or anyone else if he relocates to Colombo.
I have considered whether it is reasonable in all of the circumstances for the applicant to relocate to Colombo. For the following reasons I find that it is. The applicant has his sister in Colombo, and could also seek the support of the [Catholic] Church. He has worked in both Sri Lanka and Australia. He did not claim, nor is there any information in the material before me, to indicate that there is any other impediment to his relocation which would make that relocation unreasonable. I find that the applicant could live in Colombo with the support of his sister and the Catholic Church, and could find work and accommodation., I find that if his parents wished also to relocate to Colombo that they could be supported by the applicant and his sister. The applicant did not raise any further concerns or issues with relocation.
I find therefore that the applicant can relocate to avoid the harm feared, and that such relocation is reasonable in all the circumstances of the applicant.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
Member

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

[2024] AATA 4306

17 September 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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