2007715 (Refugee) - [2025] ARTA 812

2007715 (REFUGEE) [2025] ARTA 812 (31 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2007715

Tribunal:General Member M Bailey
Date:31 January 2025

Place:Brisbane
Decision:The Tribunal affirms the decisions under review

Statement made on 31 January 2025 at 10:39am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – particular social group – political opinion – Janatha Vimukthi Peramuna (JVP) activist – detention – fear of killing – return visits to Sri Lanka – delay in applying for protection – mental health issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA [1989] HCA 62
DFQ17 v MIBP [2019] FCAFC 64
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 25 January 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 7 October 2015. The delegate refused to grant the visas on the basis that neither the first named applicant (the applicant) or the second named applicant (second applicant) engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).
On 4 April 2018 the applicants lodged a review application with the former Administrative Appeals Tribunal (the AAT). On 4 July 2018 the AAT found that it had no jurisdiction to conduct a review as the review application was not lodged within the prescribed period. The applicants applied for judicial review of the AAT decision. [In] April 2020 the Federal Circuit Court ordered by consent that the decision of the AAT be quashed and the matter be remitted for reconsideration on the basis that the decision was affected by jurisdictional error of the type identified in DFQ17 v MIBP[1] as the Department’s refusal notification letter did not clearly state the timeframe to apply for review. On 1 May 2020, the AAT wrote to the applicants advising that their review applications had been remitted for reconsideration.
[1] [2019] FCAFC 64
On 14 October 2024, the 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.
BACKGROUND
The applicant is [an age]-year-old female of Sinhalese ethnicity from [City 1], Western Province, Sri Lanka. The second applicant, [an age]-year-old male of Sinhalese ethnicity, is her son. Their relevant migration history, as outlined in the delegate’s refusal decision, is as follows:
i.The applicant first arrived in Australia [in] April 2001 as a dependent on her husband’s [Student] visa. At that time, her husband (‘[Husband A]’) was already onshore, having first arrived in October 2000.
ii.[In] June 2002, the applicant and [Husband A] departed Australia.
iii.The applicant returned to Australia [in] August 2002, together with her daughter who arrived on a [Student] visa. [Husband A] had returned [in] July 2002.
iv.The second applicant was born in Australia on [date].
v.[In] February 2005, the applicant and second applicant, together with [Husband A] and the applicant’s daughter, departed Australia.
vi.[Husband A] returned to Australia [in] February 2014 using a different identity. On 5 November 2014, he lodged a protection visa application which was refused by the Department of Home Affairs (the Department) on 2 June 2015; that refusal was affirmed by the former Refugee Review Tribunal (RRT) [in] March 2017.
vii.[In] October 2014 the applicant’s daughter arrived in Australia on a [Student] visa.
viii.[In] November 2014, the applicant and second applicant arrived in Australia on Visitor (FA-600) visas.
The applicant provided a copy of her Sri Lankan passport to the Department as part of the protection visa application. I sighted original versions of the applicant’s current and expired Sri Lankan passports at the Tribunal hearing. I am satisfied that the applicant is a citizen of Sri Lanka and that Sri Lanka is her receiving country for the purpose of assessing her protection claims.
A copy of [an Australian] birth certificate for the second applicant was provided to the Department as part of the protection visa application. Based on the available evidence, I accept that the second applicant was born in Australia, departed when he was around [age] and returned to Australia when he was [age]. For the reasons discussed below, I am satisfied that the second applicant presently has no country of nationality and his receiving country for the purposes of assessing his protection claims is Sri Lanka.
Evidence before the Department
According to the protection visa application, the applicants are of Sinhalese ethnicity. The applicant’s religion is recorded as Roman Catholic and the second applicant’s religion as Buddhist. The applicant married [Husband A] in Sri Lanka in December 1999. Their daughter was born in Sri Lanka in [specified year].
The applicant resided in the Western Province of Sri Lanka until first departing for Australia in April 2001. She completed high school in [City 1], Western Province in [year] and was employed from [year] to 2001 in [an occupation 1] role for an organisation in Colombo. She listed several places of residence in Sri Lanka between 2005 and 2009. Between 2006 and 2009, she was self-employed as [an occupation 2] in [City 1]. Between 2009 and 2014 she travelled to [Country 1] and [Country 2] (2009 to 2011) and [Country 3] (2013 to 2014).
The second applicant resided in Sri Lanka from February 2005 until 2009 and in [Country 1] between 2009 and 2011. From 2011 until his departure for Australia in 2014, he resided in several different areas of Sri Lanka. Regarding his education, he attended an international school in [City 1] for [grade] primary school, continued [grade] in [Country 1] and completed [grade] at an international school in Ratnapura, Sri Lanka.
Regarding the applicants’ claims for protection, the only information provided was that they ‘will be killed’ if they returned to Sri Lanka. In response to further questions in the application regarding their protection claims, they stated they will ‘submit later’.
As outlined in the delegate’s refusal decision, the Department wrote to the applicants on 17 January 2018 requesting additional information prior to their scheduled protection visa interview on 25 January 2018. The applicants did not respond to the Department’s email, did not provide any additional information in support of their claims, and did not attend their protection visa interview.
In refusing the application, the delegate found that the material submitted did not provide a sufficient basis to be satisfied that the applicants faced a real chance or real risk of harm in Sri Lanka. The delegate noted that [Husband A] had also failed to attend a protection visa interview in relation to his separate protection visa application and did not appear before the RRT in relation to his review application.
Evidence before the Tribunal
On 26 November 2024 the Tribunal wrote to the applicants advising that their case was being prepared for allocation to a Tribunal Member. They were requested to complete a ‘Hearing information form’ and submit any additional information of relevance to their claims. They submitted a completed Hearing information form on 3 December 2024. No further information was provided regarding their claims for protection.
On 4 December 2024 the applicants were given notice of a hearing on 13 January 2025 and requested to provide a completed ‘Response to hearing notice’ form together with any additional information they wished the Tribunal to consider. No response was received from the applicants.
The applicants appeared before the Tribunal on 13 January 2025 to give evidence and present arguments. As outlined below, the applicant raised substantial new claims on behalf of herself and the second applicant at the first hearing. In order to fully discuss these claims, the hearing was adjourned and a further hearing scheduled on 28 January 2025. The applicants both appeared at the further hearing to give evidence and present arguments. Both hearings were conducted with the assistance of an interpreter in the Sinhala and English languages. A summary of relevant oral evidence from the Tribunal hearings is below.
The applicant stated that she completed the protection visa application herself, with some assistance from her husband. Regarding her family members, she stated that her parents and [siblings] live in the Western Province of Sri Lanka. Her parents have come to Australia twice for a visit: in 2019/2020 and in 2024. Her father has recently had a [medical condition] and requires medical care. [Family details deleted].
[Husband A] was deported from Australia to Sri Lanka in November 2023. He is currently residing with his mother in [City 1] in the Western Province. They remain legally married, but she has had no communication from her husband for the past 2 months and described them as being ‘estranged’. Her daughter is an Australian permanent resident and will shortly be granted citizenship. The applicant is currently working as [an occupation 3].
The second applicant stated that he currently describes his religion as Christian. He has very limited memory of living in Sri Lanka as a child. He completed [grade] of high school in [year] but did not [complete high school]. He attended [a college] for almost 6 months and is currently undertaking a diploma-level course in relation to [subject]. He maintains limited contact with his father in Sri Lanka via WhatsApp.
[Husband A]’s political activities
After returning to Sri Lanka in early 2005, [Husband A] started a [business 1] which he operated from home. The applicant worked in this business as [an occupation 2]. She claimed that they were unable to reside in one location for long and had to keep moving because of [Husband A’s] problems with the government due to his involvement with the Janatha Vimukthi Peramuna or People’s Liberation Front (JVP).
When asked for further details, the applicant stated that [Husband A] had been involved with the JVP since high school and, together with other JVP members and activists, was held in a detention camp for several months while completing his [school] exams. While at university between [specified yers] he was a leader of the JVP student union but did not experience any problems as, at that time, JVP activists were not being targeted. Between completing university and his first departure to Australia, [Husband A] was not active with the JVP as he was focused on work and starting a family.
After returning to Sri Lanka in 2005, [Husband A] resumed his involvement with the JVP – which the applicant described as speaking at meetings, contributing money and writing newspaper articles – which caused him to become known as a JVP activist. He was asked to cease his JVP activities and, when he did not, people from the United National Party (UNP) and other political parties started coming to their home. They would bang on the door, disturb [Husband A’s] business and attempt to take her son away. They also published articles about [Husband A]. She confirmed that [Husband A] was never detained but they had to keep moving because of these issues. The situation became worse in around 2009/2010 – the applicant referred to the army surrounding their house – causing them to depart for [Country 1] in early 2010.
They continued to experience problems in [Country 1] – on several occasions Sri Lankan government agents came to their house to look for her husband. When they could not find [Husband A] (because he didn’t stay at home during the night) they tried to take her son, but she managed to prevent this from happening. In April 2011, they returned to Sri Lanka but had to regularly keep moving to avoid problems.
In May 2013 the applicant departed Sri Lanka to join [Husband A] in [Country 3] where he was undertaking [studies]. She was granted a visa as a dependent on [Husband A’s] student visa. Their children were unable to obtain visas for [Country 3]; they remained in Sri Lanka with [Husband A’s] parents. Asked whether she or her husband had applied for protection while in [Country 3], the applicant stated they did not – in January 2014 they returned to Sri Lanka to reunite with their children before [Husband A] had completed his studies.
The applicant stated that since returning to Sri Lanka in November 2023 [Husband A] has been actively involved with the JVP. Asked whether he has encountered any problems as a result, she stated that until the JVP won the election (in November 2024), he kept moving around and did not return to [City 1]. After the JVP assumed power, he returned to [City 1] to live with his mother. Asked why her husband’s political issues would cause problems for her if she were to return to Sri Lanka, she stated that while the JVP remains in power, neither she nor [Husband A] would face problems but if they lost power, that could change.
Asked why she did not respond to the Department’s request dated 17 January 2018 for further evidence regarding her protection claims, she stated that at that time they did not have a computer and had to go to the library to check their email. This prevented her from responding to the Department. Asked why she did not attend her interview with the Department on 25 January 2018, the applicant responded with the same explanation.
I raised with the applicant several issues that may cause me to have concerns about the credibility of her claims regarding [Husband A’s] political involvement and provided her with the opportunity to comment:
i.Their failure to apply for protection while in [Country 3] if her husband had been genuinely targeted as claimed for many years in Sri Lanka and [Country 1]. The applicant responded that they decided to return to Sri Lanka because of their children who were finding the separation very difficult.
ii.The ability of her and [Husband A] to lawfully depart and re-enter Sri Lanka on several occasions between 2005 and 2014 if they were genuinely of adverse interest to the authorities. The applicant responded that she was not the main target; her husband was and when they couldn’t get to him, they tried to take her son. In addition, some of [Husband A’s] university friends who held official positions with the authorities helped them to lawfully depart and re-enter.
iii.The delay of almost one year in lodging a protection visa application following her final arrival in Australia if they were being targeted as claimed. The applicant responded that they first lodged a Student Guardian visa as they wanted to pursue a ‘genuine or legitimate visa’ pathway, but this was refused.
iv.The failure to provide any information about their protection claims to the Department or the Tribunal at any stage prior to the Tribunal hearing, with the information provided in the protection visa application being limited to a statement that they would be killed on return to Sri Lanka. The applicant responded that they never had any documentary evidence to support their claims. Further, they had to lodge their protection visa application in rushed circumstances because of a communication failure by the lawyer assisting them with the Student Guardian visa, which led to them becoming unlawful for a period of time.
v.As outlined in the delegate’s refusal decision, [Husband A] lodged his own protection visa application in November 2014 but failed to attend his protection visa interview with the Department or his hearing with the RRT. He had the opportunity to have his protection claims independently assessed but failed to engage in the process.
I noted that, while I had not made up my mind, I may have concerns as to whether they would face any harm because of [Husband A’s] political activities. The applicant reiterated that they would not have any problems while the JVP remains in power but if the government changes, there could be consequences. The applicant added that her main concern does not relate to the JVP, rather to the difficulties her son would face if he had to return to Sri Lanka.
Second applicant’s citizenship status
The applicant raised at the first hearing that her son has never been issued with a Sri Lankan passport or any other Sri Lankan identity documents. He was previously able to travel overseas by being included in her Sri Lankan passports but after becoming an adult this is no longer possible. She was issued a new Sri Lankan passport in [2024] but was unable to have her son included or obtain a separate passport for him. She confirmed that her son’s birth in Australia was never registered with the Sri Lankan authorities for the purposes of obtaining citizenship, including during the period they returned to Sri Lanka (2005 to 2014). She explained that they did not realise at that time the need to do this. While her son resided in Sri Lanka, they were able to enrol him in an international school using his Australian birth certificate and her passport which included his name.
She has made enquiries with the Sri Lankan High Commission in Australia about obtaining a passport for her son. She was told that her son would need to first travel to Sri Lanka to register his birth and apply for citizenship and they can issue him with a temporary travel document to return. They were not forthcoming regarding what steps would be involved except that the process would have to be undertaken in Sri Lanka.
At the second hearing I discussed with the applicants information from DFAT relating to an analogous situation regarding persons born in India to Sri Lankan citizen parents who did not register their birth or apply for citizenship and have unsuccessfully sought asylum in a third country. I noted that this appears applicable to the situation of the second applicant. This information indicates that the person will be issued with a temporary travel document by the Sri Lankan High Commission in their country of residence to allow them to return to Sri Lanka, where they can register their birth and apply for citizenship. In total, this process may take around one to 2 years.
The applicant responded that her son is almost [age] years old and has already wasted many years without citizenship. He would be required to waste several more years before he could work or study. He should not be punished for something that is not his fault.
I acknowledged that this process may present challenges for the second applicant. I explained the concepts of persecution and significant harm as required by the refugee and complementary protection criteria. While emphasising that I have not made up my mind, I explained that I may not be satisfied that the process to acquire citizenship in the second applicant’s circumstances would satisfy those requirements. In response, the second applicant raised new claims regarding threats from clients of his father’s business as further outlined below.
Threats in connection with [Husband A’s] business

The second applicant stated that [Husband A], his aunt (who works for [Husband A’s] business) and some other employees have received threats via social media from dissatisfied clients of [Husband A’s] [business 1]. This started after [Husband A] was deported to Sri Lanka. He is aware of a recent Facebook post (from early January 2025) in which he has also been threatened. He described the post, which includes his image circled in a photo, with threats of physical harm written in Sinhala. He indicated that he has previously done some work for his father’s [business 1] (in 2021/2022 and 2024) and fears he would be at risk of harm from these dissatisfied clients if he were to return to Sri Lanka.
Asked whether his father had been harmed as a result of these threats, the second applicant stated that it has caused [Husband A] mental suffering and had an adverse impact on his health. I discussed with the second applicant that, given the threats of harm have not been carried out against [Husband A] who owns the business, I may have concerns as to whether there is a real chance that he would be harmed if he were to return to Sri Lanka. He responded that his father has been in hiding since returning to Sri Lanka to avoid harm, but he would not be able to do that.
I raised with the applicants that I may have credibility concerns with the claim that [Husband A] has been in hiding since returning to Sri Lanka, noting my concerns regarding his political claims and considering that he has been operating a [business 1] and evidence of the applicant that he has been actively involved with the JVP. The second applicant responded that his father’s business is operated online, and he only goes into the office every few weeks. The applicant added that [Husband A] has not been continuously in hiding; only when an issue arose.
I also raised with the applicants that I may have credibility concerns due to there being no previous mention of this claim, including during the first hearing. The applicant responded that she didn’t raise it during the first hearing because it does not affect her personally; it affects her son. The second applicant reiterated that he thinks there is a real risk that he could be harmed or kidnapped because of the threats and there would be no-one in Sri Lanka to help him.
Other claims
The following claims were raised with respect to the second applicant:
i.He does not speak Sinhala and has limited experience of living in Sri Lanka, having lived the majority of his life in Australia. The second applicant described that he would ‘feel like an alien’ in Sri Lanka.
ii.He would experience difficulties in continuing his education, finding work and integrating into Sri Lankan society.
iii.He has limited family support in Sri Lanka and would not want to burden his mother who suffers from health issues.
iv.His mental health would be adversely impacted if he had to return to Sri Lanka.
Regarding his language ability, the second applicant clarified that he speaks and understands basic Sinhala – and is able to communicate at this level with his mother – but would not be able to properly communicate in Sinhala in Sri Lanka.
Regarding family support in Sri Lanka, the second applicant acknowledged that, in addition to [Husband A], he has paternal and maternal grandparents and [other relatives] living in the Western Province. He stated that his family in Sri Lanka are all poor and would not be able to support him and his mother. His mother had to send money to help pay for her father’s medical expenses following his recent [medical condition]. Further, he would have problems communicating with them because of the language barrier.
Regarding his mental health issues, the applicant stated that her son has been suffering depression because of the uncertainty with his visa status. He recently saw a GP who has referred him to a mental health service. I sighted a copy of the GP referral letter to a private mental health clinic. The applicants stated that they have to date been unable to secure an appointment.
I acknowledged that a return to Sri Lanka would give rise to significant challenges for the second applicant. However, I explained that I would need to apply the legal tests under the refugee and complementary protection criteria as discussed earlier. While I have not made up my mind, I may not be satisfied that claims of this nature would engage protection obligations.
The applicant stated that she no longer has any assets in Sri Lanka and suffers from health issues. She underwent several surgeries last year for abdominal issues, is wait-listed for [specified] surgery and needs to undergo further tests relating to [other health] issues. She is not currently taking any medication. She is concerned that she would not be able to access good quality medical care in Sri Lanka. I explained that I will need to apply the legal tests under the refugee and complementary protection criteria as discussed earlier. While I have not made up my mind, I may not be satisfied that her health-related claims would engage protection obligations.
REASONS AND FINDINGS
The issue in this case is whether any of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decisions under review should be affirmed.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.
REASONS AND FINDINGS
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
Political claims
I have significant credibility concerns regarding the claims that [Husband A] was of adverse interest in Sri Lanka because of his political activities. The applicant claims that the reason for her and her family’s departure from Sri Lanka in 2014 and their seeking protection in Australia related to [Husband A] being targeted by the government because of his involvement with the JVP. While stating that there is presently no risk of harm because the JVP holds political power in Sri Lanka, she indicated that there may be a future risk if there is a change in government.
The JVP, previously a Marxist militant organisation championing the cause of marginal people, waged an armed insurrection in southern Sri Lanka in the 1970s and 1980s. In 2015 the JVP joined a coalition of socialist parties, the National People’s Power (Jathika Jana Balawegaya) or NPP, led by Anura Kumara Dissanayake of the JVP. The NPP gained substantial support following Sri Lanka’s economic and political crisis in 2022. In elections in November 2024, the NPP secured a landslide victory, with the coalition securing a two-thirds majority in parliament, with 159 seats.[5]
[5] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, p 32; BBC News, Landslide win for new Sri Lankan president’s left-leaning coalition, 15 November 2024
The applicant claims that, since returning to Sri Lanka in 2005, [Husband A] was being targeted by government agents, such that they had to keep moving. She claims that the situation escalated in around 2009 or 2010 causing the family to depart for [Country 1] and that government agents followed them to [Country 1] and attempted to take her son in place of her husband. After returning to Sri Lanka in April 2011, they again had to keep moving to avoid harm. For all of the reasons below, I do not accept any of these claims to be credible.
As discussed with the applicants at the second hearing, entry and exit stamps in the applicant’s passport issued in February 2009 indicate that she lawfully departed Sri Lanka for [Country 1] in early February 2010; lawfully returned to Sri Lanka in mid-April 2011; lawfully departed Sri Lanka in late May 2013 and lawfully returned to Sri Lanka in mid-January 2014. The applicant confirmed that, other than her departure for [Country 3] in May 2013 ([Husband A] departed some months earlier), she travelled on each of these occasions with her husband.
I find that the ability of the applicant and [Husband A] to lawfully depart and re-enter Sri Lanka without incident on multiple occasions to undermine the credibility of her claims that [Husband A] was being actively targeted by the authorities during this period. I have considered her explanation that they received assistance from [Husband A’s] university friends who held official positions. However, I do not find this to address my concerns if [Husband A] was being genuinely targeted as claimed.
The failure of the applicant and [Husband A] to apply for protection while residing in [Country 3], in circumstances where she claims [Husband A] had been targeted for a period of almost 10 years in Sri Lanka and [Country 1], further undermines the credibility of these claims. I have considered her explanation that they returned to Sri Lanka because of their children and acknowledge that the separation would have been challenging. However, if [Husband A’s] life was genuinely in danger as claimed, I have concerns that he would have chosen to return to Sri Lanka rather than seeking protection in [Country 3].
I find the applicant’s failure to provide any supporting information or evidence to the Department to be of significant concern. The only information submitted to the Department was an assertion that the applicants would be killed if they returned to Sri Lanka. They were provided with several opportunities to provide additional evidence, including at an interview, but did not engage. I do not find the applicant’s response that they did not have any supporting documentary evidence to address the failure to provide any additional written details or attend an interview to provide oral evidence. Further, in her evidence to the Tribunal the applicant referred to [Husband A] authoring newspaper articles in support of the JVP and the government writing newspaper articles about him.
I have considered the applicant’s response that they were unable to respond to the Department’s request to provide further details and attend an interview because of limitations with accessing emails. However, given the applicant provided an email address in the protection visa application and expressly agreed to the Department communicating with her via email, I do not find this to reasonably explain the non-engagement.
I also find [Husband A’s] failure to engage in his own protection visa process to be of concern if he was genuinely being targeted as claimed. As outlined in the delegate’s refusal decision for the applicants, [Husband A] failed to attend a protection visa interview with the Department or a hearing with the RRT.
Finally, I find the delay of almost one year in applying for protection following the applicants’ final arrival in November 2014 to contribute to the above credibility concerns. I have considered the applicant’s explanation that they were initially pursuing a Student Guardian visa as they considered this to be a more legitimate visa pathway. However, if [Husband A] was genuinely being targeted as claimed, I do not find this explanation to be convincing.
I do not accept that [Husband A] was of any adverse interest due to his involvement with the JVP between 2005 and 2014. I therefore do not accept that he was of any adverse interest for this reason following his return to Sri Lanka in November 2023 or that he was in hiding from the authorities from November 2023 until the JVP assumed power in late 2024. It follows that I do not accept that the authorities tried to take or harm the second applicant when they could not locate [Husband A] or had any adverse interest in the second applicant.
Considering the above, I am not satisfied there is a real chance, being a possibility that is not remote or far-fetched,[6] that the applicants will face harm in the reasonably foreseeable future for reasons of [Husband A’s] political activities, irrespective of whether there is a change of government. I find that the applicants do not have a well-founded fear of persecution for this reason.
[6] Chan Yee Kin v MIEA [1989] HCA 62
I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicants will suffer significant harm. The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[7] For the same reasons discussed above, I am not satisfied there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of their removal to Sri Lanka in connection with [Husband A’s] political activities.
Business-related threats
[7] MIAC v SZQRB [2013] FCAFC 33
I have significant concerns with the claimed threats toward the second applicant from clients of [Husband A’s] visa business. The applicants referred to a specific Facebook post from early January 2025 which they claim included a threat toward the second applicant. The applicants claimed that there had been previous social media posts and threats toward [Husband A], his sister and other employees of the business. No documentary evidence, including of any social media posts, was provided to the Tribunal despite the Tribunal advising the applicants that it was their responsibility to submit any relevant evidence in support of their claims.
I have concerns with the late disclosure of this claim, which was first raised at the second Tribunal hearing after I explained that I may not be satisfied that the second applicant engages protection obligations due to his current lack of citizenship. I acknowledge that the second applicant did not give evidence at the first hearing. I have also considered the applicant’s response at the second hearing that she did not previously raise this because it did not relate to her personally. However, at the first hearing the applicant raised several other claims with respect to her son including his lack of citizenship and difficulties in reintegrating into Sri Lankan society. I am not satisfied that any plausible reason has been provided for the late disclosure of this claim. Based on the available evidence, I do not accept that the second applicant has been personally threatened by clients of [Husband A’s] business.
I consider it plausible that dissatisfied clients of [Husband A’s] business have from time to time posted negative or even threatening comments on social media. Based on the applicants’ evidence to the Tribunal, I find that [Husband A] has not been physically harmed in connection with these threats. Considering the credibility concerns discussed above, I do not accept that [Husband A] has avoided being harmed because he has been in hiding.
Considering the above, I am not satisfied there is a real chance that the second applicant will face harm in the reasonably foreseeable future from dissatisfied clients of [Husband A’s] business. I find that the second applicant does not have a well-founded fear of persecution for this reason. For the same reasons, I am not satisfied there is a real risk that the second applicant will suffer significant harm as a necessary and foreseeable consequence of his removal to Sri Lanka from clients of [Husband A’s] business.
Second applicant’s citizenship status
Under Sri Lankan law, children born outside Sri Lanka to Sri Lankan citizen parents are entitled to Sri Lankan citizenship. To obtain citizenship, their birth must be registered with a Sri Lankan diplomatic or consular mission in their country of birth within one year of birth. Births registered after this period incur a fine.[8]
[8] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, p 68
I accept that the applicant’s birth in Australia was never registered with the Sri Lankan High Commission in Australia or with the relevant authorities while the applicants resided in Sri Lanka. I accept that, on making enquiries with the Sri Lankan High Commission in Australia, the applicant was told that her son would need to return to Sri Lanka to register his birth and apply for citizenship and a temporary travel document could be issued for that purpose.
As discussed with the applicants, this is consistent with the following information from the most recent DFAT report for persons in an analogous situation to that of the second applicant:
According to in-country sources, individuals born in India to Sri Lankan citizens who have not been registered with the Sri Lankan Deputy High Commission in Chennai, or submitted a Sri Lankan citizenship application, and who have unsuccessfully sought asylum in a third country, must be issued with a temporary travel document by the Sri Lankan High Commission or Embassy in that country to return to Sri Lanka… DFAT understands that individuals meeting this profile are cleared by immigration officials with minimal difficulty on arrival in Sri Lanka, and they are free to apply for Sri Lankan citizenship once they have registered their birth with the Central Record Room of the Sri Lankan Government’s Registrar General’s Department. To apply for citizenship, they must submit their birth certificate; parents’ birth certificates; parents’ marriage certificate; the travel document they used to return to Sri Lanka (as issued by the Sri Lankan diplomatic mission in the country where they failed to secure asylum); their Tamil Nadu camp registration card or a police report; documents relating to their paternal and maternal grandparents; and a letter from their grama niladhari (for proof of Sri Lankan residency). Once their citizenship application is accepted, the [State Intelligence Service] undertakes a verification process, which, according to in-country sources, can take a minimum of three to six months. Once the verification process is complete, the applicant is required to pay a penalty charge of LKR5,750 (approximately AUD27) and then Sri Lankan citizenship will be issued… In-country sources told DFAT this process can take between one to two years in total. Once in possession of Sri Lankan citizenship, individuals meeting this profile may then apply for a NIC [National Identity Card].[9]
[9] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, p 41

Considering the above, I am satisfied that while the second applicant is eligible to apply for Sri Lankan citizenship by descent on return to Sri Lanka, he does not presently hold Sri Lankan citizenship or citizenship of any other country and therefore has no country of nationality. For an applicant with no country of nationality, the ‘receiving country’ as defined in s 5(1) of the Act is to be assessed against their country of former habitual residence. While the term ‘country of former habitual residence’ is not defined in the Act, having regard to relevant factors outlined in the Department’s Refugee Law Guidelines[10] and the particular circumstances of the second applicant, I find his country of former habitual residence to be Sri Lanka.
[10] Refugee Law Guidelines at [3.3.4] How to determine country of former habitual residence
Having regard to the above country information and the applicant’s evidence regarding her interactions with the Sri Lankan High Commission, I am satisfied that the second applicant would be issued with a temporary travel document to return to Sri Lanka, where he would be able to register his birth with the relevant authority and apply for citizenship. There is no evidence before me to indicate that the second applicant would be denied citizenship, including that he would lack the requisite documentation or encounter any difficulties as part of the verification process undertaken by the State Intelligence Service. For the reasons above, I have not accepted that the second applicant or his father have ever been of adverse interest to the Sri Lankan authorities. I am satisfied that the second applicant would be granted citizenship in accordance with the process outlined above. I acknowledge that this may take up to 2 years in total and that, during this period, the applicant would be without formal citizenship or a NIC. I accept that this would cause difficulties for the applicant considering that a NIC is required to access government services, including public health and education, and to open a bank account and obtain credit.[11]
[11] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, p 69
However, I am not satisfied that this would amount to persecution by the State for any of the reasons in s 5J(1)(a). I find that the delay in obtaining citizenship and a NIC would arise under generally applicable laws and procedures and would not involve systematic and discriminatory conduct on the part of the authorities. I am therefore not satisfied that the second applicant has a well-founded fear of persecution for this reason.
I have considered whether any difficulties the applicant would experience while awaiting the grant of citizenship and a NIC amount to significant harm for the purposes of the complementary protection criteria. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I accept that, while awaiting the grant of citizenship and a NIC, the applicant will be unable to access government services, including public health and education, or open a bank account and is likely to have limited formal employment opportunities. As above, I acknowledge that this would be difficult for the applicant. However, I am not satisfied that it would amount to any of the types of significant harm defined in s 36(2A). The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[12] I am not satisfied that there would be a perpetrator with the intention to inflict harm of the type described in those definitions.
[12] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
Based on the available evidence I am satisfied that, while awaiting the grant of citizenship, the second applicant would have the support of his father, mother and extended family members in Sri Lanka. I acknowledge the second applicant’s claim that his family in Sri Lanka are experiencing financial challenges which would limit their ability to support him. This is generally consistent with country information indicating that poverty levels in Sri Lanka have increased significantly since 2020, with a further increase since the economic collapse in 2022.[13] I also acknowledge the applicant’s claim that she no longer has assets in Sri Lanka. However, [Husband A] is tertiary-educated and owns a [business 1] which, according to the applicants’ evidence, has been operating for many years. While the applicant claims to be estranged from her husband, there is no indication that [Husband A] would not support his son on return to Sri Lanka.
Second applicant’s circumstances
[13] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, p 9
I accept that the second applicant speaks only basic Sinhala and has not lived in Sri Lanka since he was [age] years old. I accept that reintegrating into Sri Lankan society would involve significant personal challenges for the second applicant. However, I am not satisfied that this would amount to persecution by the State or non-State actors for any of the reasons in s 5J(1)(a). I am therefore not satisfied that the second applicant has a well-founded fear of persecution for these reasons. Further, I am not satisfied that it would amount to any of the types of significant harm defined in s 36(2A).
I have considered the claim that the second applicant’s return to Sri Lanka would have an adverse impact on his mental health. It was raised with the Tribunal that the second applicant currently suffers from depression due to the uncertainty of his visa and residency status. Based on the GP referral letter sighted at the second hearing, I accept that the second applicant was recently referred by a GP for consultation with a mental health clinic. No other medical evidence has been submitted regarding the second applicant’s mental health. There is no evidence before me to indicate that the second applicant has been formally diagnosed with any mental health condition. However, I accept that the uncertainty relating to his visa and residency status has caused him anxiety and stress. Considering the personal challenges he would face in re-integrating into Sri Lankan society, I accept that he would continue to experience mental health issues of a similar nature on return.
The applicant suggested that her son’s mental health issues may endanger his life if he were forced to return to Sri Lanka. Based on the available evidence regarding the second applicant’s mental health, I am not satisfied that there is a real chance or real risk of this occurring.
According to country information, mental health services are available in Sri Lanka. DFAT assesses that the quality, availability and accessibility of services varies widely across the country. Government-run hospitals have mental health units and medication to treat mental illness is provided free of charge through the public system. The Ministry of Health operates a dedicated mental health hospital – the National Institute of Mental Health (NIMH) – in Colombo. The NIMH treats 8,000 patients annually for a range of mental health issues and provides 24-hour emergency care and out-patient facilities. NGOs such as the Colombo-based National Council for Mental Health deliver mental health and addiction services, including counselling and short- to medium-term in-patient care. Several mental health helplines are available, including for suicide prevention and a 24/7, toll-free national helpline managed by the NIMH.[14]
[14] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, pp 14 - 15
I acknowledge that there are limitations in mental health services in Sri Lanka and that, while awaiting the grant of citizenship, the second applicant would be unable to access public health services. However, considering the above country information, I am not satisfied that this would amount to persecution by the State as outlined in s 5J(4) of the Act. I am not satisfied that the limitations in mental health services arise from systematic and discriminatory conduct by the government for any of the reasons in s 5J(1)(a).
For the purposes of the complementary protection criterion, I am not satisfied that any limitations in mental health services in Sri Lanka amount to any of the types of significant harm in s 36(2A). Considering the above country information, I find that the Sri Lankan government does not hold an intention to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable on persons suffering mental health conditions.
I am not satisfied that, individually or cumulatively, these factors give rise to a well-founded fear of persecution or a real risk of significant harm with respect to the second applicant.
Applicant’s health conditions
While no supporting medical evidence has been submitted, I accept that the applicant underwent surgery in connection with [specified health] issues on 2 occasions in 2024 and is currently wait-listed for [surgery]. Based on her oral evidence, I am also prepared to accept that she requires follow-up medical tests relating to undiagnosed [health] issues. I accept that she does not currently take any medication.
According to DFAT, 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. Private healthcare is available and of high quality, particularly in Colombo; however, it is prohibitively expensive for most Sri Lankans. Regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Colombo has the best health services and outcomes in the country. Sri Lanka has reasonably good programs for the prevention, screening and treatment of cancer, although these tend to be located in larger population centres.[15]
[15] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, pp 13
As with every sector in Sri Lankan society, the 2022 economic crisis placed unprecedented pressure on the healthcare system. Sri Lanka, which imports most of its medical supplies, had to limit imports as foreign exchange reserves ran low, resulting in severe shortages of medicine and equipment. Medical shortages have since eased considerably, with most medications now available in the public system. DFAT assesses that acute pressures on the health system created by the economic crisis have abated and shortages of medical items have eased. However, outward migration of medical professionals is impacting the overall capacity of the health system, particularly in rural areas, negatively affecting access to health services.[16]
[16] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 2 May 2024, pp 14
As a Sri Lankan citizen, the applicant would be able to access public healthcare. Considering that her parents, [siblings] and husband currently reside in Western Province, I find this to be her likely place of return. The above country information indicates that Colombo, the administrative capital of the Western Province, has the best health services and outcomes in the country. While I acknowledge that health services in Sri Lanka may not be of the same level as in Australia, I am satisfied that the applicant would be able to access health services for her accepted health conditions as outlined above.
Further, I am not satisfied that any limitations in the applicant’s ability to access health care would amount to persecution by the State as outlined in s 5J(4) of the Act or any of the types of significant harm in s 36(2A).
I am not satisfied that the applicant has a well-founded fear of persecution or faces a real risk of significant harm as a necessary and foreseeable consequence of her removal to Sri Lanka for reasons of her health conditions.
Conclusions
For the reasons given above, I am not satisfied that the applicant or second applicant are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Hearing dates: 13 and 28 January 2025
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.
…