2011397 (Refugee)

[2024] AATA 3912

2011397 (Refugee) [2024] AATA 3912 (29 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Noeline Harendran

CASE NUMBER:  2011397

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Deputy President J.L Redfern PSM

DATE:29 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 June 2024 at 5.25pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – separate, inter-related applications by brothers – irregular maritime arrival – applicant teen dependant of young adult brother – protection visa application refused and affirmed, then remitted by Federal Court – while judicial review in progress, minister lifted s 48B bar and applicant applied for safe haven visa – applicant’s two reviews and brother’s one heard together – ethnicity and political opinion – Tamil – father a senior member of LTTE, who disappeared, suspected kidnapped and presumed dead – applicants assisted with smuggling weapons and spying – questioning, harassment and threats to applicants and mother, attempted kidnapping of brother, and arrest of mother – late claims as stateless ‘gypsy’ caste originating in India and that all identity documentation not genuine – unregistered with limited access to schooling and government services, societal discrimination and mistreatment by authorities – circumstances of interviews, applications and statements –amendments to legislation after first application made have no practical effect for stateless applicants – attendance at commemorative events in Australia – mental health – wife and child who is claimed to be stateless – returned failed asylum seeker – late evidence and submissions, and conduct during hearings – dialect and interpretation – country information and expert evidence – citizenship – child of unknown parentage deemed to be citizen until contrary proven – opportunities to register after civil war ended – prevalence of false documents – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 46A(2), 48A, 48B, 65, 91R, 91S, 423A, 424AA

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1

SZTAL v MIBP [2017] HCA 34

SZUNZ v MIBP [2014] FCCA 2256; (2015) 230 FCR 272

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION

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

2. [The applicant] first made an application for a protection visa on 20 September 2012. This application was refused. The former Refugee Review Tribunal (RRT) conducted a review and affirmed the decision of the delegate. Following numerous applications for judicial review, the decision of the Tribunal was withdrawn and the applicant was successful. Following reconsideration of his matter on two occasions following successful judicial review, the decision under review was affirmed by the Tribunal three times. This last decision of the Tribunal was set aside by the Federal Court by consent on 26 June 2020 and was again remitted back to the Tribunal for reconsideration.

3. [The applicant’s older brother] also made an application for a protection visa on 20 September 2012. This application was refused. The RRT conducted a review and affirmed the decision of the delegate. Following numerous applications for judicial review, the decision of the Tribunal was upheld. Once refused, an applicant is precluded from making further applications for protection unless the Minister thinks that it is in the public interest to lift the s 48A bar (pursuant to s 48B).

4. During the period that [the applicant] was pursuing his rights of judicial review, he made application for a safe haven enterprise visa on 23 September 2016 following a decision made by the Minister to lift the bar pursuant to section s 48B of the Act. This second visa application was refused by a decision a delegate of the Minister dated 28 August 2017. He sought review of this decision to the Tribunal.

5. Accordingly, [the applicant] currently has two applications for review before the Tribunal and [the applicant’s brother] currently has one application for review.[1] 

   [1] Matter numbers 1721014 and 2011397 ([the applicant]) and 1813812 ([the applicant’s brother])

6. The procedural history in relation to both matters is complicated and interrelated. The brothers arrived as unauthorised maritime arrivals in May 2012 and were detained in immigration detention at Christmas Island. As unauthorised maritime arrivals they were barred from making an application for protection under section 46 of the Act. The Minister intervened and lifted the bar and the brothers lodged separate applications for protection in September 2012, although [the applicant] was also included in [the applicant’s brother]’s application as a dependent. The brothers had similar claims and their applications were heard together. They were released from the immigration detention on 2 July 2015.

7. [The applicant’s brother] applied for the current visa on 15 September 2017. The claim made by him when he lodged this application for protection was to the effect that his father had a senior role in the Liberation Tigers of Tamil Eelam (LTTE, also known as the Tamil Tigers) and that if he returned, he would be imprisoned by the Criminal Investigations Department (known as the CID) because of his father’s role. The applicant contended, through the representative who lodged the application on his behalf, that he would face risk of harm because of his Tamil ethnicity, his perceived association with the LTTE and his characterisation as a failed asylum seeker. The delegate refused to grant the visa on the basis that he was not satisfied about the applicant’s claims.

8. [The applicant]’s claims in his most recent application were to the effect that he was a Tamil, Tamils are not safe in Sri Lanka and he feared that on his return to Sri Lanka he would be detained and tortured. His family is suspected of having links to the LTTE and his mother had informed him that the Sri Lankan army and CID had been looking for his father since he went missing because he was in the LTTE. After this, they turned their attention to his older brother. He feared harm on his return to Sri Lanka because of his illegal departure and return as a failed asylum seeker. He also raised concerns about the release of information on the Department’s website.

9. The claims of the two brothers have changed over time. It is now claimed that both brothers are ‘stateless’ because of their heritage as lower caste [Caste] people. This claim is in addition to claims made about the risks that the brothers claim to face if they were to return to Sri Lanka because of their father’s role, and their role, in assisting the LTTE during the civil war in Sri Lanka. The claim that has now been made in relation to their role in the LTTE is that during the war and before their father’s disappearance [the applicant’s brother], and later with the assistance of [the applicant], helped their father smuggle weapons. It is now claimed that these weapons were hidden under the floor in their house and in the backyard in a pit and were collected by the LTTE. Both claim that they had a role assisting the LTTE in the smuggling of weapons some years after their father’s disappearance. The most recent claims made by the applicants are that they were also working as spies for LTTE in the years before the war ended.

10. The applications for the brothers were listed together, with evidence in one application being evidence on the other. The applicants appeared before the Tribunal on 20 and 21 March 2024 to give evidence and present arguments. The applicants were represented in relation to the reviews. [The applicant] commenced giving evidence on the first day of the hearing. However, given his apparent anxiety, his evidence was suspended, and the Tribunal proceeded with [the applicant’s brother]’s application and evidence.

11. The proceedings were adjourned to 9 and 10 May 2024 to finalise the evidence and obtain evidence from a witness who was not available at the time of the original hearing. Because of issues relating to the availability of the Tamil interpreter, the proceedings could not be finalised on this day and were relisted for hearing on 24 May 2024. There were a number of requests for adjournments, which were granted, and the proceedings were listed for a final hearing on 18 June 2024.

12. Both applicants requested an Indian Tamil interpreter, rather than a Sri Lankan Tamil interpreter, because of concerns raised about understanding the dialect of a Tamil interpreter of a Sri Lankan background. It was submitted that people from [Caste] heritage have a different dialect that is more consistent with the Indian Tamil dialect. It was further submitted that there were difficulties for the applicants in understanding the interpreter and so the proceedings were adjourned for several hours to obtain a Tamil interpreter of Indian origin. There were further concerns raised in relation to the interpreting, some of which were raised during the course of each hearing. These matters are referred to in more detail later in these reasons.

13. The reference in these reasons to ‘the applicants’ is intended to be a reference to [the applicant’s brother] and [the applicant], although it is important to note that each have separate applications and consideration of the claims made by [the applicant] will be the subject of a separate decision. Where the evidence or claims of each of the brothers is considered separately, their first names have been used to identify them and for brevity. There are separate decision records for each of the applications and much of the evidence analysis and consideration of these claims is repeated because the evidence, claims and submission are common to all three applications. As such, there is a level of duplication between the three decisions.

14. I am not satisfied that protection obligations are owed to [the applicant] and I have therefore decided to affirm the decision under review. My reasons follow

    CRITERIA FOR A PROTECTION VISA

15. 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, the applicant 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. Different law applies to the first application lodged by [the applicant]. This is because there were significant amendments made to the Act which had effect in relation to applications lodged after 2014. This does not affect the application of [the applicant’s brother] nor the second application of [the applicant].

16. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

17. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

18. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

19. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

20. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

21. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

22. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

23. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

24. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

25. 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 a protection 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 the applicant 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’).

26. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

    Country of reference and receiving country

27. An issue of significance in this case is the nationality of the applicants and the country of reference or receiving country for the purposes of assessing the applicants’ claims for protection.

28. For protection visa applications made prior to 16 December 2014, there are different requirements in determining the relevant country for the purposes of assessing the refugee criterion under s 36(2)(a) of the Act and the complementary protection criterion under s 36(2)(aa). For applications made before 16 December 2014, the country of reference for the purposes of assessment of the refugee criterion is the country of a person’s nationality. Article 1A(2) provides that if an applicant does not have a nationality and is stateless, the claim under the Convention must be assessed by reference to the person’s country or countries of former habitual residence. The complementary protection criterion for applications made before 16 December 2024 must be assessed against the definition of ‘receiving country’ in s 5(1) of the Act as it applied at that time.

29. Protection visa applications made on or after 16 December 2014 are no longer assessed by reference to Article 1A of the Refugee Convention and the definition of ‘refugee’ is codified in s 5H of the Act. As such, the relevant country of reference for both refugee and complementary protection criteria for applications made after 16 December 2014 is set out in the definition of ‘receiving country’ in s 5(1) of the Act.

30. Section 5(1) provides that the ‘receiving country’ is defined as a country of which the noncitizen is a national, which is to be determined solely by reference to the law of the relevant country or, if the citizen has no country of nationality, a country of his or her former habitual residence, regardless of whether it will be possible to return the noncitizen to the country. Section 5(1) as it applied prior to 16 December 2014 is in similar terms but excludes the reference to ‘regardless of whether it will be possible to return the noncitizen to the country’.

31. These matters are discussed in the Guide to Refugee Law in Australia (Refugee Law Guide) published by the Migration Refugee Legal Division of the Tribunal in chapter 2. [2]

    [2] Administrative Appeals Tribunal, ‘Country of Reference’ in Migration Refugee Legal Services (ed), A Guide to Refugee Law in Australia (Commonwealth of Australia, 2023) 2-2.

32. As noted in the Refugee Law Guide, for stateless applicants there is a difference between the pre-and post-16 December 2014 codified definitions, but these do not have any practical effect. This is because the pre-16 December 2014 definition of ‘receiving country’ will apply regardless of whether there is any right to return to or enter and reside in the country of habitual residence. This has been accepted by the Federal Circuit Court of Australia and has not been contradicted on appeal.[3]

    [3] SZUNZ v MIBP [2014] FCCA 2256 and SZUNZ v MIBP (2015) 230 FCR 272, 30–31.

33. It is relevant to note that there are three applications that are now being considered in these proceedings. Two of the applications were made after 16 December 2014 (1721014 and 1813812) and the remitted application of [the applicant] was made before 16 December 2014 (2011397).

1. As observed in SZUNZ v MIBP, for the purpose of the definition of receiving country, it is irrelevant as to whether a noncitizen is able or has a legal right to return to a country before that country can be regarded as a country of former habitual residence. This is also the position in relation to the Convention claims. Relevantly, the inability to re-enter a country where the person has previously habitually resided because that person has no right of re-entry, does not, without more, constitute persecution. Nor would this meet the definition for significant harm for the purposes of s 36(2)(aa).

2. A person outside the country of former habitual residence with no right to return must also have a well-founded fear of persecution or real risk of significant harm in order to satisfy the relevant tests. It is noted, and this is supported by the authorities, that the correct approach is to consider the hypothetical possibility of whether the applicant has a well-founded fear of being persecuted on the basis of what would happen if they were to return to their country of former habitual residence, not whether they could return there. As such, statelessness alone is not sufficient to attract refugee status or complementary protection.[4]

   [4] Refer Refugee Law Guide, Chapter 2 and the authorities cited.

   Mandatory considerations

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

4. The most recent country information report prepared by DFAT is the report dated 2 May 2024 (the 2024 DFAT Report). Following new claims made by the applicants in relation to their [Caste] heritage, the Tribunal obtained a report from the Country of Origin Information Services Section (COISS) of the Department of Home Affairs dated 6 December 2023 (the COISS Report on the [Caste] community). This report relies on source documents, including academic articles published in journals, publicly available articles and online media articles. Both reports, and many of the articles, were provided to the applicants prior to the hearing.

5. The applicants rely on the most recent DFAT report and other country information and reports, the details which are set out later in these reasons.

   BACKGROUND

6. [The applicants] left Sri Lanka by boat in early May 2012. They arrived in Australia as irregular maritime arrivals [in] May 2012. On arrival they were detained on Christmas Island then transferred to [City] where they were both interviewed by an immigration officer. The interviews were conducted on 16 June 2012 with the assistance of an interpreter in the Tamil language. According to the typewritten entry interviews, a copy of each brother’s national identity card and birth certificate were provided to the Department prior to the entry interview.

7. At the time of interview, [the applicant’s brother] was [more than 18] years old, and [the applicant] was [less than 18] years old. Their city of birth was recorded as [Village 1], [District] in the Northwestern Province of Sri Lanka and their address was noted as [Division], [Village 1], [District] Northwestern Province. It was recorded that [the applicant’s brother] attended the [High School 1] from [Year] to [Year] with the primary level of schooling and [College 1] – [City] from [Year] to [Year] and [College 2] [District], from [Year] to [Year] for secondary schooling, with the final year in approximately May 2012 at [High School 2] to study A-levels. It was recorded in [the applicant’s brother]’s entry interview that he worked in [work sectors 1-3] from [Year] to May 2012 and in [work sector 4] up until May 2012. [The applicant] was listed as a family member in his care, and it was noted that [the applicant’s brother] had been financially responsible for his mother and siblings since his father had been kidnapped. In response to the question of why [the applicant’s brother] left Sri Lankan, it was noted that [the applicants] were the only two boys left in the family and they had tried to kidnap [the applicant’s brother]. It was noted that the CID would come to their house and ask about [the applicant’s brother]. It was difficult for his mother to take care of him and his brother and this is why they left. [The applicant’s brother] also told the interviewing officer that the ‘grease devils’ came to their house carrying guns and knives. His mother had organised for them to leave Sri Lanka by boat, but he did not know whether she had paid any money.

8. In [the applicant]’s entry interview it is recorded that [the applicant’s brother] was his guardian. It was noted that the original national identity card and birth certificate was with his mother in Sri Lanka. It was also recorded that [the applicant] had attended secondary school from [Year] to [Year], being [Village 2] School], [Village 1] (given [the applicant]’s age at this time the reference to ‘secondary’ school may be a typographical error) and the [Location 1, Village 2] Tamil High School] from [Year] to 2012. His employment was recorded as [work sectors 1-3] and, in particular, working on a [workplace]. Like [the applicant’s brother], it was noted that he did odd jobs such as [job task]. The response to the question of why he had left Sri Lanka was consistent with the information provided by [the applicant’s brother] in his entry interview.

9. [The applicants] lodged applications for protection visas on 20 September 2012. The details in the applications were consistent with the information provided at the entry interview, including their address and birthplace in Sri Lanka and the nature of their claims. The applications were prepared with the assistance of a lawyer and were accompanied by statutory declarations from each brother outlining their claims. The statutory declarations were brief and noted that the applicants’ father had gone missing in [Year]. It was noted that he was a fisherman and that it was suspected that the CID had kidnapped him together with a number of other Tamil men who had gone missing. Their mother did not like to talk about the circumstances of their father’s disappearance. After their father’s disappearance, the CID came to their house and harassed them. The reason given was concern by the CID and the Sri Lankan army that they would inform about their father’s kidnapping, including to the United Nations. The CID reportedly threatened their mother and said that if they ever filed a complaint the family would be killed. When the CID came to the house, the brothers would hide or they would not be at home. They stayed at different places to avoid being caught. This impacted their work and studies. The ‘Grease devils’ came to their house just before they left Sri Lanka, and it was after this event that the brothers decided to flee the country. It was also noted that even after the brothers arrived in Australia, the CID and the Sri Lankan army had come to their house to ask their mother where they were. Both brothers were concerned that if they return to Sri Lanka they would be harmed, and authorities would not protect them because they were Tamils. The statements of [the applicants] were in similar terms, but [the applicant] noted that his brother would be more likely to be pursued because he was the eldest son in the family. He was concerned that if his brother escaped then the CID would focus on him.

10. Both brothers attended an interview with a department officer on 28 September 2012. Their applications for protection were refused. There were separate decisions for [the applicants] and both decision records, dated 14 December 2012, outlined the claims for protection of each, the findings of fact made by the delegate and the delegate’s assessment of whether protection obligations were owed. [The applicants] sought review of the decision of the delegate and lodged copies of the decision records with the Tribunal.

11. In relation to [the applicant’s brother]’s application, the delegate noted that he had lodged copies of his birth certificate, national identity card, school certificate and a letter of reference to confirm his identity and country of birth. It is recorded that [the applicant’s brother] told the delegate he was a citizen of Sri Lanka. The claims for protection were summarised in the decision record. The claims were that [the applicant’s brother] is a Tamil and he fled Sri Lanka with his brother in approximately May 2012 because his life was in danger. In approximately [Year], his father went missing. He was a fisherman and was with nine other Tamil men who also went missing. People in the village said that the CID had kidnapped them, but his mother did not like talking about the circumstances involving his father’s disappearance. From the time of his father’s kidnapping, the CID and the Sri Lankan army were worried that he would inform about his father’s kidnapping. His mother was threatened that if she or her sons filed a complaint with the UN they would be killed. When the CID came, he would escape or try and stay away from the house to avoid being caught. He was lucky to survive although these incidents impacted his work and studies. When the ‘grease devils’ came to his house in 2011 they broke windows and doors. His family were very afraid.

12. Since he had left Sri Lanka, the Sri Lankan army and the CID had come to his house and asked his mother where he and his brother were. They could not relocate in Sri Lanka as there was nowhere safe for them to go. The Sinhalese did not like Tamils and want them out of the country. The situation between the LTTE and the authorities became worse after the war with the CID, the Sri Lankan army and other Sinhalese people believing that Tamils supported the LTTE. [The applicant’s brother] is concerned that if he returns to Sri Lanka he would be identified as a young Tamil male who had returned from a Western country and the CID or the Sri Lankan army would think that he told Western countries everything about them and the atrocities they had committed. He would therefore be tortured and killed and he was aware of cases where this had happened.

13. The delegate did not accept the credibility of a number of the claims made by [the applicant’s brother] although accepted that [the applicant’s brother]’s father had disappeared in [Year], was presumed to be dead and that he may have been kidnapped and killed by the Sri Lankan army or the CID because he was a Tamil who supported the LTTE. However, the delegate did not accept that the CID or the Sri Lankan army regularly came to [the applicant’s brother]’s house to harass him after his father died. The delegate was not satisfied about the claims that grease devils visited his house in 2011 because it was considered that the claims were vague and may have been exacerbated by media reports that had caused widespread fear and panic about grease devils. While the delegate accepted that [the applicant’s brother] had a generalised subjective fear of the situation in Sri Lanka based on the past conflict and treatment of Tamils, she noted that [the applicant’s brother] had not provided any reason why he would now be of interest to the Sri Lankan army or the CID. After considering the country information identified in the decision record, the delegate was not satisfied that [the applicant’s brother] had a real chance of being persecuted under the Refugee Convention. The delegate then went on to consider the complementary protection criterion. She was not satisfied that there were substantial grounds for believing that, as are necessary and foreseeable consequence of the [the applicant’s brother] being removed from Australia back to Sri Lanka, there was a real risk he would suffer significant harm.

14. The decision record for [the applicant] was consistent with the decision record for [the applicant’s brother], with the claims recorded in similar terms but with differences reflecting that [the applicant] made claims as the younger brother of [the applicant’s brother]. The delegate made similar findings about credibility and was not satisfied that there was a real chance of [the applicant] being persecuted as a refugee. The delegate also rejected the claim that Australia had protection obligations under the complementary protection grounds.

15. The applications for [the applicant’s brother] and [the applicant] were listed before the Refugee Review Tribunal on 25 February and 8 May 2013. The applications were heard together. The presiding member affirmed the decisions under review.

16. [The applicants] sought judicial review of the decisions. [The applicant] was successful and, as already noted, his original application has been remitted back to the Tribunal (and its predecessor) for reconsideration on three occasions. [The applicant’s brother]’s applications for judicial review were unsuccessful. [The applicant’s brother] appealed the ruling of the Full Court of the Federal Court, which was in favour of the Minister, to the High Court. The application for special leave was dismissed on 7 April 2016 and this left [the applicant’s brother] with no pathway to remain in Australia.

17. In February 2014, the Department published a routine report on its website which unintentionally enabled access to some personal information about people who were in detention on 31 January 2014. Letters were sent to affected claimants, which included the applicants. The applicants were sent letters about this in April and July 2014, and they were notified that it was possible to access personal information on the Department website for a short period which included their name, date of birth, nationality, gender, details about their detention and whether they had other family members in detention. It was specifically noted that the information did not include their address or former address, telephone numbers or contact details and that the information did not include information about their protection claims or personal information such as health information. In the case of [the applicant’s brother], the Department undertook an International Treaties Obligations Assessment (ITOA) which assessed whether, in the circumstances of [the applicant’s brother]’s case, Australia’s non-refoulement obligations were engaged given the website disclosure. The Department concluded that those obligations were not engaged and [the applicant’s brother] was notified of this by letter dated 14 August 2015.

18. On 16 September 2016 the Minister intervened and lifted the legislative bars under sections 46A (2) and 48B of the Act to allow [the applicant’s brother] to apply for a temporary protection visa (TPV) or for a safe haven enterprise visa (SHEV). After being granted successive bridging visas from October 2016 until September 2017, [the applicant’s brother] was invited by the department on 12 September 2017 to apply for a SHEV visa, which he did on 15 September 2017.

19. [The applicant’s brother] attended the department interview on 21 February 2018. Key aspects of his evidence during the interview are set out later in this decision.

20. [The applicant’s brother]’s second application for protection was refused on 4 May 2018. In summary, the delegate was not satisfied that [the applicant’s brother]’s father was involved with the LTTE or that his father was a senior figure. The delegate did not accept that his mother had not told him about his father’s role in 2014 to protect him, nor did the delegate except that [the applicant’s brother] and his family were of adverse interest to authorities. The delegate considered that the alleged frequent visits by the CID over the years following his father’s disappearance were fabricated and not credible. It was not accepted that [the applicant’s brother]’s mother had been arrested on numerous occasions or that she was hiding from the CID. The delegate noted [the applicant’s brother]’s claim and concern about the department data breach. The delegate noted while the website included certain information about [the applicant’s brother] it did not include details of his protection claims. The delegate did not consider that the information about [the applicant’s brother] disclosed as a result of the data breach would attract the interest of Sri Lankan authorities given [the applicant’s brother] did not have a profile of concern. [The applicant’s brother]’s claims as a refugee and under complementary protection were rejected. [The applicant’s brother] lodged a review of this decision. The decision record dated 4 May 2018 was served on the Tribunal with the application for review.

21. On 13 April 2016 the Minister intervened and lifted the legislative bars under sections 46A (2) and 48B of the Act to allow [the applicant] to apply for a temporary protection visa (TPV) or for a safe haven enterprise visa (SHEV). [The applicant] was invited by the department on 15 September 2016 to apply for a SHEV visa, which he did on 23 September 2016.

22. [The applicant] attended the department interview on 17 August 2017. Key aspects of his evidence during the interview are set out later in this decision.

23. His second application for protection was refused on 28 August 2017. In summary, the delegate was not satisfied that [the applicant’s brother]’s father was involved with the LTTE or that Sri Lankan authorities suspected his father of being in the LTTE. The delegate did not accept his family were of adverse interest to authorities or that authorities were concerned that [the applicant] and members of his family would inform non-government organisations about his father’s disappearance. It was noted that his grandmother had made a complaint, but she had not attracted adverse attention by authorities. The delegate considered that the alleged frequent visits by the CID over the years following his father’s disappearance were fabricated and not credible. [The applicant] had raised concerns about the department data breach. The delegate noted that the information released did not include contact details and information about his protection claims. The delegate found that even if [the applicant] was suspected to have made claims for asylum, he did not have a past adverse political profile and, accordingly, the delegate was not satisfied that he would draw adverse attention of the Sri Lanka authorities on his return. The delegate did not accept his claims and rejected the application. As already noted, [the applicant] lodged a review of this decision. Unlike [the applicant’s brother], [the applicant] was not legally represented when he made his application or at the interview with the delegate. The decision record dated 28 August 2017 was served on the Tribunal with the application for review.

    OUTLINE OF CLAIMS

24. The applicants claim they persecution because of their role in assisting the LTTE, their father’s role in the LTTE before he disappeared, concerns by authorities that their family would complain to non-government agencies, such as the United Nations, about their father’s disappearance, their race or membership of a low caste minority, the [Caste], and their profile as young Tamil males who have sought asylum and lived in a Western country for many years. It is also claimed that the applicants are stateless and cannot obtain citizenship in Sri Lanka and they cannot be registered or obtain identity cards and other identity documents such as a birth certificate. The documents provided to the Department and the Tribunal are false and if authorities find out about this, they will be imprisoned on their return. Authorities may become aware of this because the people who assisted in providing the documents, may inform on them. They raise claims that the breach of their data by the Department means that authorities know their details and claims, and they will be targeted on his return. Both applicants claim their activities in Australia in attending commemorative days such as Heroes Day, will expose them to persecution on their return.

1. [The applicant] does not specifically raise claims about his mental health as a ground for claiming protection, although he has explained that his mental health issues have made it difficult for him to properly make his claims and to give evidence at various proceedings and in interviews before the delegate. [The applicant’s brother] also raises these issues. While this claim has not been specifically raised by the applicants in these proceedings, I have given consideration to this claim as a potential claim available on material.

   PROCEDURAL ISSUES, HEARING AND INTERPRETER ISSUES

2. These applications were constituted to Senior Member Shahyar Roushan. All applications were listed together, and the applicants were sent hearing invitations on 7 August 2023. Attached to the hearing invitations was a copy of the Tribunal Practice Direction for the conduct of hearings in the Migration and Refugee Division. The invitation requested that the applicants comply with the Practice Direction, which includes directions about the conduct of proceedings before the Migration and Refugee Division.

3. Relevantly, clause 7 provides that applicants should lodge any evidence which supports their claims within the timeframe specified and should lodge a signed and dated written statement from any person that the applicant wants the Tribunal to call as a witness to the hearing, setting out the evidence they will give at the hearing. In relation to protection visa cases, clause 11 provides that if an applicant wants to make a new or varied claim, the applicant should lodge a witness statement setting out the evidence about the new or varied claim and clearly identifying the new or varied claim in written submissions. Any new evidence in support of an applicant’s claims should be clearly identified in written submissions. A ‘new claim’ is a claim that has not previously been made and a ‘varied claim’ is a claim that has changed or developed since it was made. Clause 11 also provides that if the applicant wants the Tribunal to have regard to particular information about the situation in the country of origin relevant to the application, the applicant should lodge a copy of that country information with the Tribunal and explain in the written submissions which parts of the information the applicant relies on and why it is relevant to the review. Clause 9 of the Practice Direction provides that unless the Tribunal has specifically allowed otherwise, the applicant should lodge at least seven days before the hearing, all evidence, including witnesses statements and outlines of evidence on which the applicant relies on and any witness submissions. If an applicant lodges documents less than seven days before the hearing, the applicant should explain why in writing.

4. The applications were listed for hearing on 7 September 2023. [The applicant] was to give evidence. At the commencement of the hearing, it was identified that the only interpreter available was a Tamil interpreter by video. [The applicant] indicated that he wanted to have an interpreter in person. Because of the concerns raised, it was suggested by the Senior Member that the opportunity be taken to clarify the various claims now made. This hearing was approximately 30 minutes in duration. At this hearing the applicants’ lawyer stated that one of the claims now made was that the applicants were stateless. The Senior Member responded that, based on his understanding of legislation that had been passed in Sri Lanka, nobody in Sri Lanka was stateless. This was disputed and there was some discussion about the effect of the legislation in Sri Lanka. The Senior Member noted that significant claims have been raised for the first time and that it would be important for the applicants to explain why this was the case. He also raised concerns about the fact that these new claims were raised so late. This was raised on several occasions, as evidenced by the transcript of the hearing, and on each occasion the applicants’ lawyer responded to the effect that she understood this. At the end of the hearing, the applicants’ lawyer said they wanted an interpreter who could speak the Indian dialect because the northern dialect is very different to the language that the applicants spoke.

5. The hearing was rescheduled to 25 October 2023. Evidence was taken from [Ms A], who had provided a statement before the first hearing and was presented as an expert. The detail of her evidence is set out later in my reasons. The Senior Member then commenced taking evidence from [the applicant] and questioned him about his claims. It was apparent that the Tribunal did not secure an Indian Tamil interpreter but rather a Sri Lankan Tamil interpreter. After a short period, [the applicant] raised issues about his language and ability to understand the questions. He later raised concerns about understanding the interpreter and the fact that Indian Tamil was different from Sri Lankan Tamil. [The applicant]’s lawyer submitted that the applicants needed an Indian Tamil interpreter as having a Sri Lankan Tamil interpreter was causing problems. Senior Member Roushan agreed to adjourn the hearing and reconvene seeking to obtain an Indian Tamil interpreter for the next hearing. The remainder of the hearing time was used to discuss the applicants’ claims, the further evidence that the applicants wish to rely on and the importance of the applicants’ lawyers complying with the Practice Direction. Relevant to the claims now raise, the Senior Member raised the issue that if a person is found to be ‘stateless’ that does not automatically make them a refugee under Australian law.

6. After this hearing, the applicants made a request for Senior Member Shahyar Roushan to recuse himself, which he decided to do. The matter was reconstituted, and the applicants were invited to attend a hearing for two days commencing on 20 March 2024. In the hearing invitation dated 29 February 2024 the applicants were provided with a copy of the Practice Direction. The applicants were also provided with the COISS Report on the [Caste] community on 14 March 2024.

7. I reviewed the transcript of the hearings on 7 September and 25 October 2023, including the evidence of [Ms A]. I decided not to have regard to the evidence given by [the applicant] at the hearing on 25 October 2023 unless the applicants requested that I do so because of the concerns about the interpreting. This was discussed at the commencement of the hearing on 20 March 2024 and was agreed by the applicants’ lawyer.

8. At the commencement of the hearing on 20 March 2024 it was identified that the interpreter made available by the registry was a Sri Lankan Tamil interpreter. Despite specific instructions, the reference in the hearing response to Sri Lankan Tamil ‘estate’ interpreter was taken by the registry to be a reference to a Sri Lankan Tamil interpreter as opposed to an interpreter in the Indian Tamil dialect.

9. Once this issue was identified at the commencement of the hearing, the proceedings were adjourned for a few hours to obtain an in person Indian Tamil interpreter. An Indian Tamil interpreter was secured but she was only available from 1pm and the hearing resumed at approximately 1pm. During the hearing, the interpreter raised concerns about the applicants’ lawyer interjecting while she interpreted evidence. The applicants’ lawyer was asked not to interject while the interpreter was interpreting. This became an issue in the hearing on 10 May 2024 for the reasons outlined later in my reasons. The same interpreter was retained in this later hearing.

10. When the hearing resumed on 20 March, [the applicant] commenced giving evidence but because he was extremely anxious and unsettled, his evidence was suspended, and [the applicant’s brother] commenced giving evidence until the end of the day.

11. On the second day of the hearing, namely 21 March 2024, [the applicant’s brother] continued giving evidence. The Tribunal was unable to arrange an Indian Tamil interpreter in person and therefore arranged an Indian Tamil interpreter who appeared by video link. [The applicant’s brother] objected to giving evidence through a video interpreter because he said he wanted the interpreter to be in person so he could see the interpreter talking. I formed the view that the interpreter was clearly able to be seen on the screen. He was a NAATI level 3 interpreter. While it was accepted that it was critical for the interpreter to be able to see the applicant to accurately interpret, it is generally less critical for an applicant to look at an interpreter. I accept that [the applicant’s brother] had a level of anxiety about giving evidence and would have preferred to be in the same room with the interpreter, but this is not always possible. Ultimately, it comes down to the issue of whether an applicant is given a fair hearing and is able to properly and appropriately give evidence at the hearing.

12. Because of the difficulties in sourcing Indian Tamil interpreters at an appropriate level, I directed that the hearing proceed, but took measures to facilitate a fair hearing process for both applicants. This was the approach that our adopted all hearings. Relevantly, I indicated to [the applicant’s brother] that if there was any issue, and he did not understand he should indicate this immediately. It was also indicated to the applicants’ lawyer that if she was concerned about any matter, this should be raised at appropriate intervals during the hearing. This approach was taken by the applicants’ lawyer throughout all hearings. I did not allow contentious issues about interpretation to be raised in the presence of the witnesses and gave the applicants’ lawyer the opportunity to raise these issues at appropriate times, usually before short adjournments. Where an issue was raised about a misunderstanding, the question was rephrased, or the issue was revisited in later in the hearing. In cases where it was claimed that there was a miscommunication and the miscommunication was immaterial, I did not seek clarification of this matter and advised the legal applicants’ lawyer accordingly.

13. In assessing the evidence of the applicants, I have not taken issue with small discrepancies, having regard to the difficulties for an applicant in giving evidence through an interpreter. However, where there was an asserted miscommunication or misunderstanding about a material matter, these issues were clarified with the applicants during the course of their evidence. There were a small number of interruptions about these matters on 21 March 2024 and I was satisfied, on listening to the audio recording of the hearing, that these issues were resolved.

14. At the commencement of the hearing on 21 March 2024, the lawyer for the applicants indicated that she had a personal issue that would cause problems for her continuing to attend the Tribunal for the whole of the day. She advised that she may need to leave before lunch. At the outset it was indicated that while the hearing would proceed with the Tribunal attempting to take the evidence from [the applicant’s brother] and another witness, it would be adjourned and rescheduled to accommodate the lawyer’s personal circumstances. This decision was made in recognition of the importance of the applicants to continue to receive legal representation during the course of the hearing. It was also accepted that the personal circumstances of the lawyer were outside the control of the lawyer and could not be deferred.

15. Further evidence was taken from [Ms A], who had given evidence at the hearing on 25 October 2023. She was interposed in the middle of the evidence of [the applicant’s brother] because she was only available at a particular time. After this evidence, [the applicant’s brother] continued to give evidence until lunchtime when the hearing was adjourned to allow the applicants’ lawyer to be released to attend to her personal matter. The hearing was rescheduled and was listed on 9 and 10 May 2024.

16. On 29 April 2024, the Tribunal wrote to the applicants in the following terms:

    You make a claim that the National Identity Cards provided by you are not genuine or are fraudulent. As this is a claim that has only been raised recently, it is an issue that raises concerns about the credibility of this claim. It is possible to request the Department of Home Affairs to verify whether the National Identity Cards are genuine, which can be undertaken by the Department of Home Affairs Integrity team at the Colombo post. We understand that the Department officials will work with Sri Lanka’s Registration of Persons for the verification. The response to this enquiry may assist the Tribunal in assessing your claim.

    Please advise whether you have any objection to the Tribunal making any enquiry along [these] sic lines, is a matter of urgency, but in any event by COB Wednesday, 1 May 2024

17. The response was provided by the applicants’ lawyer that day as follows:

    Dear Deputy President,

    It is very concerning and scary that the Department would compromise, the safety of the applicants and their families, bearing in mind that they are protection visa applicants by informing the Sri Lankan authorities, that the applicants have taken fake documents.

    This is very concerning, and the applicants are fearful of what this would mean in regards to any other information that they provide to the Tribunal as it seems nothing, is kept confidential for the safety of the applicants.

    The applicants do not consent to this information to be shared with any Sri Lankan authority as this would put their mother’s life it in an imminent risk.

18. In response to this, the Tribunal sent an email to the applicants’ lawyers the following day as follows:

    The Tribunal notes the applicants do not consent to information being provided to Sri Lanka’s Registration of Persons in order to verify the status of the copies of the National Identity Cards provided to the Tribunal. In these circumstances the Tribunal will not refer the matter to the Department of Home Affairs Integrity team at Colombo post.

19. The Tribunal also provided a copy of the transcript of the hearing before the Refugee Review Tribunal on 25 February 2013 and the transcripts of the interviews from 2017 and 2018 with the Department. The email indicated that the applicants may be asked questions about the information provided in these interviews and in the hearing.

20. On the day before the rescheduled hearing, but not received by the Tribunal Member until the morning of the hearing, the applicants served new statutory declarations outlining further claims. The Tribunal secured the same interpreter who had participated in the hearing by video link on 21 March 2024. There was a short delay in the commencement of the hearing on 9 May so that this material could be reviewed. [The applicant’s brother] again raised objections about the use of the interpreter by video link. Given the difficulties in sourcing an Indian Tamil interpreter, the hearing proceeded, and the same approach was taken as previously, namely, the applicants were invited to seek clarification in relation to anything they did not understand, and the applicants’ lawyer was invited to raise concerns so that those matters could be clarified if necessary. I formed the view that having the same interpreter who had previously been involved would be an advantage. The hearing proceeded with evidence from [the applicant’s brother] until lunch. The evidence of [Ms B] was interposed at the request of the applicants because of her limited availability. [The applicant’s brother] resumed giving evidence which was completed at the end of that day.

21. The applicants’ lawyer raised some issues about the interpreting. Those matters are recorded in the transcript. She raised three issues which were discussed at length and are set out in the transcript. Where the issues were considered to be material, they were subsequently rephrased or revisited in further evidence. There was an attempt near the end of the hearing on 9 May 2020 to call the applicants’ mother who had provided a statement. It was difficult to establish the telephone link and so the hearing was adjourned to the following day.

22. The Tribunal was able to arrange an in-person Indian Tamil interpreter for 10 May 2024. [The applicant] commenced giving his evidence. Soon after the commencement of the hearing the interpreter raised concerns about the loud tapping on the computer by the applicants’ lawyer. She said that she was finding it very difficult to concentrate and wanted to ensure that she was not distracted and could properly interpret. I accepted this objection, having listened to the hearings in March 2024 where this was self-evident. It was also noticeably louder in the second hearing room with the interpreter in relatively close proximity to the parties. The acoustics in this hearing room was better suited to accommodate the telephone evidence that was scheduled to be taken from the applicants’ mother, but this meant that the typing of the lawyer was quite distracting. This issue was explored at length and the applicants’ lawyer objected to taking notes during the hearing because this was not her usual practice. Offence was taken to the objection, and the discussion that took place is recorded in the transcript. Ultimately, the matter was resolved by the Tribunal directing the applicants’ lawyer not to type during the hearing but to take notes. It was agreed that the Tribunal would order the transcript, for both days, and make this available to the applicants to ensure there was no disadvantage. It should be noted that this is an unusual step to be taken by the Tribunal but given the contentious issues raised in the previous hearings, this was considered to be the most efficient and fair course to adopt, which would also give the applicants the opportunity to subsequently raise any issues about miscommunications or misunderstandings in the evidence in a timely manner.

23. Evidence was sought to be taken from the applicants’ mother who had provided a detailed statement. She was telephoned and, while the telephone line was not very clear, there were considerable difficulties in her giving evidence resulting from other issues. Most of the difficulties arose because the applicants’ mother spoke very quickly, did not necessarily respond to the question asked, possibly because she could not hear it, and was crying through much of her evidence. She was clearly upset. [The applicants] were also present during her evidence. They appeared to be visibly upset and there were a number of interjections by the applicants’ lawyer. The transcript of the hearing records some of these matters but the confusion and difficulties that arose during this evidence is best understood by listening to the audio recording. Given these difficulties, and the fact that the applicants appeared to be getting agitated, a decision was made not to continue to attempt to obtain any further evidence from the applicants’ mother. This decision was communicated to the applicants and their lawyer, who agreed with this course.

24. A decision was made to adjourn the proceedings for a brief period to allow the applicants to regain their composure. The interpreter requested that she remain in the hearing room and the applicants left the hearing room. However, on the resumption of the hearing, the interpreter raised concerns that the applicants had returned to the room and were talking with their lawyer in front of her, raising what she considered to be disparaging comments about her. These issues were explored during the hearing, denied by the applicants’ lawyer who indicated that the comments being made were not about the interpreter but more generally about information that had been requested. The interpreter advised the Tribunal that she did not feel like she could continue as she was unduly pressured. After stating for the record that it was inappropriate for the applicants and the applicants’ lawyer to be discussing matters in front of the interpreter, I formed the view that the interpreter should be allowed to be discharged from attending the rest of the hearing. She did not feel comfortable proceeding and the applicants also appeared to be dissatisfied. Evidence was taken from a further witness but in the absence of an interpreter, the proceedings needed to be further adjourned. The purpose of rescheduling a further hearing was to take final evidence from the applicants and to raise any matters of concern and to allow the applicants’ lawyer to make oral submissions.

1. The further hearing was scheduled for 24 May 2024 but before the hearing the Tribunal received a request from the applicants to delay the hearing to give them opportunity to obtain an alternative transcript of the mother’s evidence by another interpreter. This adjournment was granted and the matter was rescheduled for hearing on 5 June 2024. Just prior to the hearing, the Tribunal was requested to adjourn the hearing because [the applicant] had COVID and the applicants’ lawyer was feeling unwell. The hearing was rescheduled to 13 June 2024, but the applicants’ lawyer advised she was unavailable on that day, indicating that she was available on either 17 or 18 June 2024. Given the difficulties in rescheduling and finalising the hearings, it was agreed that the matter should proceed by video hearing, initially on 17 June but then on 18 June 2024 to secure the services of the Indian Tamil interpreter who had been involved in two of the previous hearings.

2. The applicants have raised issues about interpreting, both in the current proceedings and in previous proceedings and interviews. One of the difficulties that was encountered during the course of these hearings was that the applicants both spoke quickly, spoke in long sequences, did not pause to allow the interpreters to interpret and became emotional and agitated on a number of occasions. While this can be a common issue in refugee proceedings, in particular proceedings where applicants have been in Australia for many years and have gone through numerous appeal and review processes, this presented a real challenge in this case. Difficulties also arose because of occasional direct communication with the interpreter, leading to the in-person interpreter seeking to be excused. The video interpreting generally proceeded smoothly, although I accept that the video interpreting on 21 March 2024 was sometimes problematic because the video either froze or it was difficult to hear because of the echo in the room. This did not appear to be a problem in the hearing on 9 May 2024 or in the hearing on 18 June 2024 which proceeded by MS Teams.

3. As already noted, I have taken a cautious approach in assessing inconsistencies where there are small discrepancies or differences in evidence.

4. A further issue that arose in the conduct of the proceedings is that the Tribunal was continually served with late evidence and submissions. This was an issue raised by the previous Member in the hearings in 2023 and was a problem in these proceedings. For example, evidence was lodged just before the hearing on 9 May 2024. New evidence and submissions were served on the Tribunal on the day before the hearing on 18 June 2024 and on the day of the hearing. This made it very difficult to review the material provided and potentially prolonged the hearing as it was necessary to clarify the material. Relevantly, the applicants did not comply with the Practice Direction and appeared to be unapologetic about this.

5. A further issue that impacted the hearing was their conduct during the hearing. The applicants, when giving their evidence and sometimes when not giving evidence, were agitated and rude. The applicants’ lawyer interrupted the evidence on occasion and did little to control the applicants’ behaviour and conduct.

6. The applicants were allowed to remain in the hearing room when each other gave evidence and they were not excluded, other than on one occasion when [the applicant’s brother] disrupted the hearing and the evidence of [the applicant], the details of which are set out below.

7. At the end of the hearing, the applicants were directed to provide any further submissions by close of business on 24 June 2024. No directions had been made about the filing of further evidence. Despite these directions, further evidence was served after the last hearing and documents, and email submissions, were lodged on or after 24 June 2024.

   EVIDENCE

   Outline of evidence by [the applicant]

8. The evidence before the Tribunal comprised a statutory declaration dated 20 September 2012 provided by [the applicant] in relation to his previous application for a protection visa, and statutory declarations dated 1 September 2023 and 8 January and 8 May and 17, 18 and 24 June 2024. [The applicant] also gave oral evidence at the hearings.

9. Because of the changes in [the applicant]’s claims since 2012 and the claims of both applicants are said to corroborate each other’s claims, it is important to carefully examine the evidence that he has provided.

10. In his statutory declaration of 20 September 2012, [the applicant] stated that he was a [Age]-year-old male born in [Village 1], [District] district, North-western province Sri Lanka. His ethnicity is Tamil and he is a Hindu. He travelled to Australia by boat with his older brother. His father is missing and his mother and [sister] are living in Sri Lanka. He left Sri Lanka in approximately May 2012 with his brother as his life was in danger at the hands of the Sri Lankan army, the CID and other members of the authorities. He came to Australia for the same reasons as his older brother did.

11. His father was a fisherman and went missing along with other fishermen in their area in [Year] when they went to work. They did not return home. They have not heard from their father since then. He believed that because the war between the Sri Lankan Army and the LTTE was happening at that time, his father must have been taken by the CID or the Sri Lankan Army on suspicion that he was an LTTE member. This is what other villages were saying at the time. After his father went missing, they began to be harassed by the Sri Lankan Army and the CID. He was young at the time and could not remember anything, although, he did know that the CID and Sri Lankan Army continued to look for him and his brother. They would regularly come to their house to look for them. They were concerned that he and his brother will inform someone of what they did to his father. Because his brother was older than him, his brother had no option but to flee. If [the applicant] had stayed in Sri Lanka, he would have been pursued because he would then have been the oldest son present in the house at the time. The CID and the Sri Lankan Army would be angry that his brother had escaped. They had been harassing them on many instances and damaged their house. If he had stayed it would have been worse for him that is why he fled with his brother. He cannot relocate to another area of Sri Lanka as he would have to live in an Sinhalese area and people would know from his name and language that he was at Tamil and would inform on him. He was concerned that he would be harmed and mistreated by the Sri Lankan Army, the CID and the police and that he would be tortured and killed if he returned. This is because he is his father’s son. [The applicant] also raised concerns that he was a young Tamil male, and he believes that he will be targeted and suffer ongoing persecution.

12. After the first Tribunal hearing in 2013, [the applicant] attended two further Tribunal hearings in respect of the refusal of his first protection visa application, the most recent being on 20 July 2016. By decision dated 29 November 2016, the Tribunal affirmed the decision under review. A summary of [the applicant]’s claims were set out in the decision. Relevantly, it was noted that [the applicant] now claimed that his father was involved with the LTTE. He explained that he did not want to mention this earlier because he was concerned that if he said that his father was helping the LTTE this would backfire. He also said that he was concerned that authorities were still looking for his father. This claim, and a number of other claims, were rejected by the Tribunal. [The applicant] appealed this decision to the Federal Circuit Court of Australia, which upheld the decision. [The applicant] subsequently appealed to the Federal Court and the Tribunal decision was remitted by consent on the basis that the decision of the Tribunal was affected by jurisdictional error as the reasoning regarding [The applicant]’s claims about his father lacked a logical basis and was considered to be material to the outcome.

13. [The applicant] was invited to attend a hearing on 7 September 2023 in respect of the remitted application for the refusal of his first protection visa application and the refusal of his second visa application.

14. [The applicant] provided a statutory declaration dated 1 September 2023. [The applicant] states that the statutory declaration is not exhaustive and that he wants to elaborate on his claims at the hearing. The contents of the statutory declaration are the following effect:

    ·[The applicant] was born in [Village 1] and he lived there until he left to go to Australia in 2012. He was born on [Date] and when he left for Australia, he was [Age] years old. His siblings are [the applicant’s brother] and [his sister].

    ·He had his early education in [Village 1], Thamil Mahavidyalayam, which was about a kilometre from their house. Thereafter, he started attending the [Village 2] Thamil Mahavidyalayam, which was about 3 km from their house. When he left Sri Lanka, he was in grade [Number].

    ·His father was a fisherman, he would go fishing in the night and return in the mornings. In [Year], his father did not return from fishing. He was very sad and he learned later from his mother that his father had been abducted by the CID. At the time [the applicant] was seven years old. This affected him badly.

    ·He knew that there was something different about them. Every time the police or army came to their home, his mother would get very stressed and scared. He grew up being afraid of authorities. At that time, he was not aware that the family was unregistered. It was only later on when he was bullied that he realised they were unregistered persons. When he was at school, he remembered being bullied by other boys who would knock him on the head and kick him. He was teased that he was a person who was not a Sri Lankan.

    ·After his father’s death, he would go with his brother to collect parcels for the LTTE from the beach. They used to bring the parcels and give them to their mother. She later arranged for them to dispose of these parcels to the relevant people.

    ·After learning how to do this, when his brother did not go, he collected the parcels. When he went to the beach, his mother would tell him that a man wearing a particular coloured T-shirt would give him the parcel. This was so that he would not speak to anyone about this man.

    ·When they were at home, the Sri Lankan Army, the police and the CID have visited their house in search of them. They learned from their mother that there are people who informed the security personnel regarding their activities. They had to take extra precautions when they were staying at home. During these visits, [the applicant] remembers the CID interrogating his mother. He was watching and was not involved, probably due to his age.

    ·Their security could not have been guaranteed in that environment and his mother was very concerned about them. She therefore arranged to send them overseas by boat through an agent. They left Sri Lanka in April 2012 and arrived on Christmas Island on 21 May 2012.

    ·[The applicant] learned from his mother that the police had gone to their home and had taken his national identity card from her. His mother admitted that her two sons had been sent to Australia. The police responded by saying that they will have to come back to Sri Lanka and then they will come to know about them because they have the national identity card. The police also told her that they were aware of what [the applicants] were doing and where they were.

    ·As they had no documents, when they had to get a national identity card, they had to bribe the officials. This was only after they came to Australia and they gave their mother some money to get them a birth certificate, which she was able to obtain.

    ·Before they came to Australia it was hard for them to get birth certificates when they were in Sri Lanka. The person who was helping them get documents could not get birth certificates in the same way that he could with the national identity card. They were instead told that it would cost more money. They did not have that ability to pay the money while they were in Sri Lanka. When they arrived in Australia, they were told they had to get a birth certificate so they obtained the certificate.

    ·They have no legal right to live in Sri Lanka due to their caste.

    ·[The applicant] came to know that there was the data leak about their ‘vital details’ on the Internet which posed a grave threat to their security back in Sri Lanka.

    ·He felt compelled to express his views and he has taken part in a couple of Heroes’ Day functions held in Sydney to honour the fallen heroes of the LTTE. He posted these photos on social media. The CID had seen these photos and informed his mother that he was living in Australia without a visa and that at any time, he would be sent back to Sri Lanka and his life would be in danger.

    ·He met his current wife in 2016 and registered her in September 2016. He currently has a son who was born in [Year].

    ·The reason he did not divulge these claims is that he was always afraid to give this information about being unregistered to anybody. He was afraid that the Australian government would treat them like the Sri Lankan government. [The applicant] apologises to the Tribunal for not divulging this earlier but they are aware that this is their last chance that he needs to be honest about who they are in Sri Lanka.

15. In his statutory declaration dated 8 January 2024, [the applicant] raised concerns about the fact that he had a Sri Lankan Tamil interpreter who appeared by videolink and it was therefore hard for him to understand what was being said. [The applicant] stated that prior to the hearing, he had raised the claims that he belonged to a downtrodden stateless tribe in Sri Lanka, the [Caste]. [The applicant] also raised concerns that when it was raised by their lawyer that they wanted an Indian Tamil interpreter, the Member had said ‘are you sure that you do because you had so many previous interviews with the Sri Lankan interpreter without an issue’. According to [the applicant], it was a shock to him when the interpreter on the next hearing was a Sri Lankan Tamil and he was concerned that the Member was forcing him to go ahead with the hearing and said, ‘I don’t care’.

16. The matters discussed at the previous hearing are set out above. Because of concerns raised by [the applicant] about the evidence given by him in the previous hearing in October 2023, I have not had regard to that evidence. This was specifically raised at the beginning of the hearing on 20 March 2024 and [the applicant]’s lawyer agreed with this approach.

17. [The applicant] commenced giving evidence on 20 March 2024. He seemed to be very unsettled and upset so a decision was made to suspend taking his evidence and proceed to take evidence from [the applicant’s brother]. [The applicant] remained in the hearing room during all of [the applicant’s brother]’s evidence.

18. [The applicant] provided a further statutory declaration dated 8 May 2024. His statutory declaration included written evidence to the following effect:

    ·[The applicant’s brother] had told him that day that [Mr C], who was a supervisor to them and would tell them what to do in relation to the parcels, had come to their house in [Village 1] last month and had asked their mother about them. He also knew [the applicant].

    ·[The applicant] stated that he wished to clarify some matters raised in the transcript of the 2013 hearing before the Refugee Review Tribunal.

    ·He noted at page 23 of the transcript that he claimed that he went to good schools and completed year [Number]. The documentation that had been provided to the Department and the Tribunal was fake. His mother had told him not to get caught with the fake documentation and so he kept on saying the same thing to be consistent with the false documents provided. [The applicant] apologises for misleading the Tribunal previously. [The applicant] only seldomly attended school. It was hard to go to school because of their caste and the fact that they were not registered.

    ·Like his brother, [the applicant] states that all the documents he had provided are fake.

    ·On page 25 of the transcript of the 2013 Tribunal hearing, the interpreter has mentioned that his aunt lived next door. There is a misunderstanding about this. Older people may be called aunt or uncle for respect, this is the norm in Sri Lanka. He was referring to the lady who was a neighbour next door as his aunt, but she was not his aunt.

    ·In page 28 of the transcript, it states that his friend was shot. It was not his friend but his friend’s father who was shot. He has lost contact with that friend and understands that his friend may not be in [Village 1] anymore.

    ·On page 30 of the transcript, when he was asked how his mother would know the CID comes to their home, he states he would like to elaborate. The CID do not just come to one house, they would come to the lane in the area. When the CID comes to the area there is tension. This is why his mother would have known when the CID or the Sri Lankan Army came for questioning.

    ·On page 35 of the transcript, there was a question put to him about why the CID would not come through the back of the house. [The applicant] attached a photograph of his house in 2013 which showed that there was a jungle at the back of the house. The CID would not be able to come through the back of the house.

    ·[The applicant] states that his claim is not that they were hunted like Osama bin Laden but his claim is due to their profile of being in the LTTE, his father’s role in the LTTE and their caste, they would be targeted significantly and harmed and tortured. They belong to a particular social group of persons who are marginalised, discriminated against, and face significant harm and even death.

100.   [The applicant] gave oral evidence of the hearing on 10 May 2024. His evidence was to the following effect:

·After his father disappeared, he was also involved in collecting weapons for the LTTE. He could not remember when he started to do this, but he agreed that it was at the time that [the applicant’s brother] started doing this. This would have been in about [Year] or [Year] and that means that he would have been about 13 years old.

·[The applicant] confirmed that he had provided fake documentation. When asked why he had done that, he said that his mother had advised him to do this. He apologised for providing the fake documents and misleading the Tribunal. When asked whether this information was more than misleading, and rather was untrue, [the applicant] said that he did this because his mother told him not to tell the Tribunal that it was false.

·In response to the concern raised that he had given detailed evidence to the Tribunal about this matter, including why he had changed schools, [the applicant] agreed that this evidence was untrue.

·[The applicant] attached a picture of the house in 2016 which showed that there was a jungle at the back of the house. He provided this to explain why it would not be that easy for them to escape through the back door of their house.

·[The applicant] was asked to explain what his role in working with the LTTE involved. He said that whatever weapons he was given, he handed these over to his mother and they were then kept in the house. He could not remember whether he saw people from the LTTE pick up the parcels. He said that he did this until the war finished in 2009. He said that he was not a member of the LTTE. He was aware of his father’s role in transporting weapons.

374.   I accept that these fears have the relevant refugee nexus for the purposes of the refugee criterion. I also accept that the applicants have genuine fears about returning to Sri Lanka return that they will face discrimination and hardship on their return. However, I am not satisfied these fears are well-founded or that there is a real chance the applicants, and relevant to this case, [the applicant’s brother], will be persecuted for a refugee reason, or at all, for the reasons that follow.

375.   The applicants claim to have a well-founded fear of persecution on the grounds of their profile and their father’s profile in the LTTE. I am not satisfied that the applicants have such a well-founded fear of persecution because I do not accept that they are former LTTE members or, that they worked for the LTTE. Nor do I accept that their family has been monitored and harassed by the CID and the Sri Lankan army since the war finished and after they left Sri Lanka, other than perhaps officials making an enquiry of their mother soon after they left as outline earlier in my reasons. At the highest, the applicants may be identified as Tamils of lower socio-economic status who may have assisted the LTTE for financial reasons but according to the country information, this is not a profile that would attract interest.

376.   These conclusions are based on my assessment of the applicants’ evidence, their profile resulting from this evidence and the available country information. As already noted, I do not accept that the applicants were involved in transporting weapons and spying for the LTTE.

377.   The applicants claim that they face a well-founded fear of persecution because of their interests in and regular attendance at Heroes Day in Australia. As already noted, I am not satisfied that the applicants will attract adverse interest by authorities simply because of this regular attendance. They have provided no other evidence to suggest that they support the separatist cause on social media. The social media provided is confined to their presence at Heroes Day and paying homage to Genocide Day in the last few years.

378.   I am not satisfied that the applicants have a well-founded fear that they will be continually harassed and monitored by the CID or the Sri Lankan Army. This is because I am not satisfied that they will be targeted on their return because of a claimed association with the LTTE or as young Tamil men who are failed asylum seekers. Both applicants raise concerns about the data breaches. However, I note that the data breaches in 2014 were limited, identified them as Tamils claiming protection, which does not in and of itself expose them to adverse interest. Moreover, there is no evidence that their mother was harmed or even questioned as a result of this data breach.

379.   I reject, as baseless, any claim that the Tribunal or interpreters used by the Tribunal will leak information to authorities. There is no evidence to support this, and this claim is entirely speculative.

380.   I am not satisfied that the applicants have a well-founded fear because they will be targeted as attracting interest in dealing with and still possessing weapons on their property. This is because I do not accept these claims about the buried weapons.

381.   I accept that the applicants are [Caste]. While I accept that they may face societal discrimination, I am not satisfied that this will amount to serious harm. As noted in MIMA v Haji Ibrahim discrimination does not itself amount to persecution. Whether discrimination amounts to persecution will depend on the form and extent of the harm. Economic harm or disadvantage and the interference with some civil rights may not, without more, reach the standard of persecution. While persecution always involves the notion of selective harassment or pursuit, to amount to serious harm the harassment or discrimination must be intensive, repetitive or prolonged. In this case, there is evidence that the applicants previously worked before they left Sri Lanka. While both state that they were disadvantaged in their education, this is no longer a relevant consideration. Both applicants have worked since coming to Australia and they can return to their home to live with their mother or alternatively, could seek employment in a major city such as Colombo. I am not satisfied on the basis of the material provided that the applicants would be deprived of benefits and access to services.

382.   Having regard to the citizenship laws in Sri Lanka, I am not satisfied that the applicants will face a well-founded fear of persecution because they cannot be registered or because they are stateless. First, this is because I do not accept that they are stateless. Secondly, being stateless does not, without more, engage the refugee criterion. This is because a person without a nationality (or citizenship) must be assessed against their place of habitual residence. As already noted, I am not satisfied that the applicants face a well-founded fear of persecution in respect of the other matters claimed. I accept there may be delays in obtaining national identity cards because of the applicants’ long absence from Sri Lanka. I also accept this may be inconvenient and at times difficult. However, I am not satisfied that this, of itself, constitutes serious harm. Relevantly, I am not satisfied that they will be denied access to government services or entitlements because they are of the [Caste]. Nor am I satisfied that the applicants, and relevant to this application, [the applicant], face a real chance of persecution and serious harm as a result of mental health issues.

383.   For completeness, I note that it is important to consider whether these matters, or some of them, taken cumulatively or collectively, engage the refugee criterion. Because I do not accept the majority of the claims made by the applicants, I do not accept that these matters give rise to a well-founded fear of persecution in their totality. Insofar as I accept that the applicants are young Tamil males who have left Sri Lanka illegally, made claims for protection in Australia, have attended Heroes Day commemorative celebrations in Australia and have mental health issues given the current circumstances they find themselves in, I am not satisfied that the totality of these particular characteristics of the applicants result in them facing a real chance of persecution or potential for serious harm.

384.   Given that this application relates to [the applicant], I note that my findings, while dealing with both applicants as a matter of convenience and because they requested combined hearings, are also findings that I make in respect of his individual claims for protection.

385.   For the reasons given above, I am not satisfied that [The applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary protection

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I must consider the alternative criterion in s 36(2)(aa). The claims made are based on the same grounds as those claimed in respect of the refugee criterion.

387.   Protection obligations will arise under s.36(2)(aa) of the Act if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer 'significant harm'.

388.   Significant harm is exhaustively defined in s.36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34). A real risk or a real chance is one that is not remote or insubstantial or a far-fetched possibility.

389.   Having regard to my findings about whether [the applicant’s brother] will face a real chance of serious harm if he returns to Sri Lanka, it follows that I am not satisfied he will face a real risk of significant harm on his return to Sri Lanka. Relevantly, I am not satisfied that there is a real risk of significant harm based on the claims made.

390.   For the reasons already outlined, I am not satisfied that [the applicant] will be tortured or detained in a Sri Lankan prison because of any outstanding warrants for perceived association with the LTTE or under the PTA. I accept that on their return, both applicants may be questioned and charged under the I&E Act. I also accept that they may be detained at the airport while waiting to be brought before the court. I am not satisfied that any treatment they will experience as a result of this would fall within the definition of ‘significant harm’, which is exhaustively defined in s 36(2)(aa) of the Act. For instance, there is no evidence that, if charged under the I&E Act, [the applicant] would be arbitrarily deprived of his life, that he would receive the death penalty, that he would be subjected to torture or that he would be subjected to cruel or inhuman or degrading treatment or punishment. There is no material before me that suggests there is mistreatment of detainees at the airport.

391.   Accordingly, based on the material before me I am not satisfied that there is a real risk [the applicant] would be subjected to cruel or inhuman or degrading treatment or punishment if he was held on remand at the airport pending his court appearance.

392.   For the reasons outlined above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm.

393.   There is no suggestion that the [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).

394.   I note that [the applicant] has a young child born in Australia. His child has not made claims for protection. Nor has [the applicant] sought to join his son or other members of his family to his application. and, as such, I have not made any assessment about these matters. For completeness, I note that [the applicant] raised in his oral evidence concerns about returning with his family, including his son, to Sri Lanka. These concerns were based on his claims, which I have rejected. He has not requested, given the protracted nature of the proceedings and the fact that he has a child born in Australia, that hat the tribunal consider making a referral for intervention to the Minister. Accordingly, there is nothing before me about this and I note [the applicant], or his lawyer, may make such a request for referral independently of the Tribunal.

DECISION

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

J.L Redfern PSM

Deputy President

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.

…