2012158 (Refugee)

2012158 (Refugee) [2023] AATA 1320 (16 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Sally Szmerling
CASE NUMBER: 2012158

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Brendan Darcy
DATE:16 February 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 February 2023 at 11:07am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court – race – Tamil – imputed political opinion – collaborating with the Liberation Tigers of Tamil Eelam (LTTE) – particular social group – wealthy Tamil – failed asylum seeker – illegal departure – extortive threats by corrupt members of law enforcement – false legal proceedings – fear of torture – mental health issues – prevalence of corruption – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
McDonald v Director-General of Social Security (1984) 1 FCR 354
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
Nagalingam v MILGEA & Anor (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visa on 21 November 2012 and the delegate refused to grant the visa on 28 February 2014.
On 15 March 2017, the Tribunal notified the applicant that it affirmed the delegate’s refusal decision not to grant the applicant a protection visa.
[In] July 2020, the Federal Circuit Court of Australia remitted the matter for the Tribunal to consider pursuant to sub-rule 13.04 on the grounds the first respondent conceded that the Tribunal failed to comply with s 424A of the Act.
The applicant appeared before the Tribunal on 2 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
RELEVANT LAW
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.
Refugee criterion
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
Identity documents
According to the applicant’s certified and translated birth certificate submitted to the Department the applicant was born on [date] in [Town 1] in Sri Lanka’s North Western Province. The same document identifies the applicant as Tamil by race, along with his mother and father.
A copy of the applicant’s Sri Lankan passport, with an accompanying translation into English, is on the Departmental file ([number]). It was issued [in] 2011. The applicant did not provide the original passport.
A copy of the applicant’s certified and translated national identity card issued in 2005 was also submitted to the Department. The card indicates that his residence was [Village 1], [Town 1] in North Western Province. A copy of the applicant’s Sri Lankan driver’s licence issued [in] 2012 was also submitted.
Travel and visa history
According to the applicant’s statement, the applicant’s travel history included fleeing to [Country 1] in June 2011 with the assistance of a man called [Mr A], a friend of the applicant’s father. The applicant was hoping to travel to [Country 2] via [Country 1]. The applicant claimed that he used both his Sri Lankan passport and a bogus Indian passport while in [Country 1] but that he paid the traffickers to return to Sri Lanka on his Sri Lankan passport in October 2011.
The applicant departed Sri Lanka [in] June 2012 arriving at Christmas Island, part of Australia’s Indian Ocean Territories [in] June 2012 as an irregular maritime arrival. The boat on which the applicant arrived was codenamed [name] and the applicant was allocated the ‘Boat ID’ [number]. It is claimed that no third countries had been transited from departure.
An entry interview on 11 August 2012 was conducted by the relevant authorities in Australia. A copy of this can be found on the applicant’s departmental file.
The Minister lifted the s 46A(1) bar [in] August 2012 and the applicant subsequently and validly applied for a Class XA Subclass 866 protection visa on 19 November 2012.
Written claims
The applicant completed and submitted 866 and 80 Forms as part of the applicant’s valid application for a protection visa in 2012. Attached was a statutory declaration outlining the applicant’s claims at the time of application. Below is a summary of those claims:
·     The applicant claimed to have fled Sri Lanka because of the persecution he faced and stated that he is afraid to return because he believes that he will be persecuted again by the authorities because he is suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers).
·     The applicant claimed that he was born in the village of [Town 1] and that his family had some land on which they farmed [animal 1s]. He stated that the family also operated a [product 1] farm on other land near the river and that he was the manager of the farm, overseeing the workers.
·     In 2010 he claimed that he employed two people from outside the area to work on the [product 1] farm. Their names were [Mr B] and [Mr C] and they said that they came from the Batticaloa area.
·     The applicant claimed that the two men worked hard for two–three months and then told him that they did not like the job and left. He said that he paid them in full and afterwards simply asked friends to help him out on the farm when he needed it.
·     The applicant further claimed that his problems with the Central Intelligence Department (CID) started [in] December 2010 when he went to a [Party] in [Town 2] and stayed overnight. He said that his father called him the next day and told him that the CID had been to their house and had been looking for him. He said that his father told him that the CID was coming with him to [Town 2] to look for him.
·     When the CID arrived at his [friend’s] house, they identified him and told him to get into the van. They took him to the police station and began to question him about the two men he had employed.
·     The applicant stated that when the CID asked him if he knew the names of the two people they mentioned, he said that he did not as he only knew their first names. He claimed that they struck him to the back of his neck and then showed him photos of the two men. He claimed that he then admitted that the two men had worked on his farm.
·     The CID told him that the two men were LTTE members and functioned as LTTE informants. He said that they accused him of providing support to the LTTE supporters and wanted to know the names of LTTE supporters.
·     The applicant stated that he was shocked and confused and admitted to the CID officer that the men had worked on his farm but that he had no idea that they were members of the LTTE.
·     He claimed that the CID then tried to force him into saying that the truth was that he knew that they were LTTE in order to avoid bigger problems.
·     The applicant stated that he told the CID that he had no idea that they were LTTE. He said that his father knew what was happening to him and brought a man called [Mr A] to the police station. He stated that [Mr A] had political connections and links to the police as well.
·     [Mr A] said that he had spoken to the CID and advised the applicant that he should say yes to whatever the CID wanted him to say. He stated that the CID then let him go after he told them that the men had worked for him but that he did not know that they were LTTE.
·     The applicant claimed that two days later [Mr A] phoned him and told him that two men were coming to his house and that he had to give them [amount] Sri Lankan rupees. When the applicant said that he did not have the money, [Mr A] said that if he did not pay he would be in more trouble. He stated that he managed to get the money from friends and relatives.
·     The applicant further claimed that his mother became very ill after all this. He said that for the next three months he worked on the farm without any issues.
·     Three months later his mother called him and told him that two CID officers had come to the house and were looking for him. He claimed that he called [Mr A] and told him that the CID was after him again. [Mr A] called him back later and informed him that two new CID officers were on the case and were trying to extort money from him. The applicant said that he did not return home that night but stayed on the farm.
·     The applicant claimed that he did not return home the next day and his father called him and said that the CID had gone to their house again and were asking for him, saying that they would find him if he tried to run away. He said that he hid on the farm for about 15 days and then the CID came looking for him on the farm. He ran away and hid and they did not find him but threatened his workers.
·     The applicant stated that he knew that he was not safe and hid in 15 different houses in [Town 1]. He also stayed with his [relative] at [a named location] for about two months.
·     After this he went to [Country 1] after arranging with an agent to take him to [Country 2]. The applicant fell sick and he stayed in [Country 1] for a number of months without a visa.
·     The applicant returned to Sri Lanka in October 2011 and again approached [Mr A] to find a way for him to depart his country of citizenshp. He said that he remained in hiding but knew that he was not safe from the CID.
·     He claimed that the CID went to his sister’s fiancé’s family and told them about him. As a result the fiancé broke off the engagement.
·     The applicant stated that he left Sri Lanka [in] June 2012 and arrived in Australia [later in] June 2012. He stated that he fears the CID as they can accuse him of crimes he has not committed, such as supporting the LTTE.
·     He also fears returning as he left the country illegally by boat and applied for asylum in Australia.
The applicant was provided with an opportunity to be interviewed by the Department, which the applicant participated in on 5 July 2013.
Merits review
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 28 February 2014.
On 14 March 2014, the applicant applied to have the delegate’s decision reviewed by the Refugee Review Tribunal, which was later constituted into this Tribunal.
For its consideration, the Tribunal received a statutory declaration signed by the applicant. It is dated 11 October 2016 and included the following additional claims:
·     The applicant vaguely remembered hearing about a Tamil man being shot and killed in his village before his problems began. It occurred during the war when a respected and wealthy man, [Mr D] was killed.
·     The applicant’s father told the applicant the CID now believes the applicant helped the LTTE kill [Mr D].
·     The rumour that the applicant was responsible has circulated among the villagers and [Mr D’s] family began harassing and threatening the family. The applicant’s name was raised at a court hearing of the case.
·     The applicant stated that sometime after his protection application was refused by the Department, the applicant asked his father to visit [Mr A’s] family and his father mentioned he was starting to have trouble with the CID because of the applicant and that [Mr A’s] family were facing problems because the applicant was a murder suspect. [Mr A’s] family insulted his father.
·     The applicant’s father ‘could not take it anymore’ as he had been a respected man in the village. His father attempted to take his own [life].
·     The applicant persuaded his family to write a letter to the CID in Colombo stating that he had nothing to do with the murder. The letter did not improve the situation. [Mr A’s] family continued to threaten the family and his father attempted to kill himself. The applicant’s father left for [another country]. This occurred a year before the statement.
·     The applicant’s mother and sister did not have any male protection and men started to go into the family house. His sister’s marriage was affected. His mother and sister closed the shop and left the area and the CID asked neighbours about the family’s whereabouts.
·     The applicant’s friend found an article from a local Tamil paper about the murder of [Mr D] from 2009 but his friend was reluctant to email it to the applicant to submit to the Tribunal. His friend feared the CID as he had been detained by the authorities in [Town 2] and in Colombo where he was tortured.
·     His friend also disclosed to the applicant that his father had been arrested by the CID and assaulted because of the applicant being under suspicion. He asked his sister about it who confirmed it and mentioned a large bribe was paid to have his father released.
·     The applicant’s sister had received a letter from the CID demanding the applicant report to it so they could interrogate him about the murder and suspected LTTE links. His sister is not sure where the letters are kept.

A hearing was conducted on 17 October 2016 with the assistance of an interpreter in the English and Tamil languages. During the hearing, the then presiding Member put to the applicant credibility concerns under the Act’s adverse information provisions.
On 11 November 2016, the Tribunal received a further legal submission and another statutory statement signed by the applicant dated 28 October 2016. That statutory declaration was in response to the credibility concerns and the adverse information put to the applicant during the immediately abovementioned scheduled hearing.
The post hearing submission documents included:
·     Invoices from 2008, 2009 and 2010 from [Business 1] indicating a [product 1] farm called [name] in [Village 1] purchased large amounts of [related products];
·     A 2006 certificate of business registered for [this name farm] to operate as a [product 1] farm;
·     A land surveyor’s document for a subdivision in [a named nearby town in] North Western Province; and
·     A 2001 attestation to transfer a title of land situated in [Village 2].
The Tribunal affirmed the decision not to grant the applicant a protection visa on 10 March 2017. The applicant subsequently applied to have the Tribunal’s decision reviewed.
Following the FCCA decision to set aside the Tribunal’s March 2017 decision, the applicant was invited to a scheduled hearing to be held on 12 April 2022 (which was later postponed for 2 May 2022).
On 28 April 2022, the Tribunal received a pre-hearing submission prepared by the applicant’s representative. The following documents were attached to the legal submission:
·     A Warrant for Arrest issued by [Court 1] with key handwritten details dated [in] December 2018. The translation into English indicates the applicant was a suspect and was required to produce himself before this court.
·     A Warrant for Arrest issued by [Court 1] with key handwritten details dated [in] October 2021. The translation into English indicates the applicant was a suspect and was required to produce himself before this court.
·     Two (2) handwritten Sri Lankan Police message forms dated [in] December 2011 and [ October] 2014. The translations of both message forms indicate the applicant was invited by the [named unit] to attend a meeting to make a statement.
·     An affidavit signed by the applicant’s father, [named], reiterating his son was arrested and harassed by the CID [in] December 2020 in connection with two persons involved with the LTTE activities and that the applicant remains a person of interest. It is dated 15 March 2022.
Inclusive of these documents was a statutory declaration signed by the applicant and dated 28 April 2022. It mentioned that he continues to be of interest to the authorities as LTTE members claimed the applicant was involved in a murder they committed; his friend [named] gathered documents to provide to the Tribunal; his family continues to have problems in Sri Lanka including his sister who has difficulties in finding a fiancé; and his father is currently in India.
As mentioned above, a scheduled hearing was conducted on 5 May 2022. At the end of the hearing, the Tribunal undertook to write to the applicant to raise any more recent information about the situation in Sri Lanka’s 2022 political and economic crisis and other information for comment.
On 25 October 2022, the Tribunal wrote to the applicant to invite comment on the particular information arising from the delegate’s decision record dated February 2014; information raised in the applicant’s departmental interview on 5 July 2012; excerpts from the 23 December 2021 DFAT report regarding the situation for Tamil Sri Lankans and availability of mental health services; and a 17 August 2022 Country of Origin Information Services Section (COISS) report prepared by the Department of Home Affairs about a situational update arising from the 2022 political and economic crises in Sri Lanka.
On 18 November 2022, the Tribunal received a legal submission which addressed the following issues:
·     The applicant’s mental health;
·     Concerns arising from the delegate’s decision record dated 28 February 2014 and interview with the Department on 5 July 2013; and
·     Country information, including about Sri Lanka’s mental health system and the political and security situation in that country, the situation for Tamil Sri Lankans and the operation of the PTA.
Attached to the submission was a letter dated 4 November 2022 written by the applicant’s psychologist. The letter indicated the applicant has recently engaged the psychologist in cognitive behavioural therapy and is currently experiencing symptoms relating to major depressive disorder. The letter does not indicate the applicant is being treated through medication.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The applicant has claimed to be a citizen of Sri Lanka.
The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided copies of the biodata page of his Sri Lankan passport, his birth certificate and national identity card issued by Sri Lankan authorities to the Department which are on the departmental file.
On the basis of this evidence and with no evidence to the contrary, the Tribunal finds the applicant is a national of Sri Lanka for the purposes of the Convention and that Sri Lanka is the applicant’s country of origin under s 36(2)(a). On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s 36(2)(aa).
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
Credibility considerations and findings
It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196–197 and 203–204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.
However, decision makers are not required to accept uncritically any or all allegations made by an applicant. Moreover, decision makers are not required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
In this decision, the Tribunal makes a limited number of adverse credibility findings while finding the applicant to be an otherwise credible and reliable witness. In making these findings, it has done so as it accepts that the applicant has been a victim and a survivor of torture and that it finds it understandable that he has presented such contrived claims and non-genuine documentation to augment his otherwise credible claims.
Accepted personal circumstances
The Tribunal accepts the following aspects of the applicant’s personal circumstances:
·     The applicant was born in [year] in [Town 1] in Sri Lanka’s North Western Province, as claimed.
·     It accepts the applicant is Hindu by religion and Tamil by ethnicity and that he speaks, reads and writes Tamil.
·     The Tribunal accepts that his father and his mother have not passed away and that he has [specified family members] who reside in Sri Lanka.
·     After leaving school in [specified year], the applicant did some coursework in [subjects] and worked in a [business] before working on his family’s business.
·     The applicant claimed his family has owned and/or operated a number of [enterprises] including [an animal 1] farm, a [product 1] farm and grocery store and that the applicant has managed those enterprises, which included duties to oversee employees.
Adverse credibility concerns about claims in the applicant’s October 2016 statement
The credibility of the applicant is always central in evaluating dispositive claims for protection.
It is open to decision makers not to accept critical aspects about an applicant’s claims when significant adverse credibility concerns arise.
Because the Tribunal is making findings that he satisfies s 36(2)(a), it will not be making exhaustive findings about those claims which lack credibility. Instead, it makes the general findings that those claims about the applicant being a murder suspect of a Tamil businessperson called [Mr D] were vague, unsubstantiated and unpersuasive. Furthermore, those claims were advanced after the notification of the refusal decision, inviting the Tribunal to consider that they were contrived to augment his earlier claims.
These later claims submitted before the Tribunal in 2016 only had the effect to invite adverse findings about the credibility of his overall claims. This behaviour was foolish and counterproductive, leading to the applicant experiencing many years of uncertainty, following the earlier Tribunal member’s decision to affirm the decision not to grant the applicant a protection visa.
Accordingly, the Tribunal does not accept the applicant has ever been a person of interest to the CID or any one in authority for the 2009 suspected murder of a respected Tamil businessperson from the applicant’s local area, or that the CID are seeking to question the applicant in connection to this murder. It does not accept any members of his family have been harassed or threatened by any persons, including the members of [Mr A’s] family, for the reasons claimed in the October 2016 statutory declaration. The Tribunal does not accept the applicant’s parents were internally or externally displaced within or outside of Sri Lanka or that his father attempted to kill himself for the reasons claimed. It does not accept the applicant’s unnamed friend had been detained or tortured in connection with the alleged murder or that he feared emailing the applicant. That is because the Tribunal finds that this set of claims advanced in the October 2016 statutory declaration and which the applicant has maintained right up to the most recent hearing is found to be a clumsy constructed fabrication to augment his earlier claims for protection.
In making these findings, it follows that the Tribunal does not accept the authenticity of any warrant or summons for the applicant’s arrest from 2018 or 2021 that was submitted to this Tribunal after a Federal Circuit Court remittal. It places no weight on the handwritten documents purporting to be from Sri Lanka’s [named unit] as genuine. Neither does it accept the applicant was wanted by the CID as claimed by the applicant’s father in the March 2022 statutory declaration.
The Tribunal notes the applicant has advanced claims about his mental health condition as a relevant consideration. While the Tribunal accepts the applicant has a number of mental health symptoms, it has placed little weight on them in his explanation about the quality of his testimony or the lateness of certain claims.
Travel between [Country 1] and Sri Lanka in 2011 and his departure from Sri Lanka in 2012
It is accepted that the applicant travelled to [Country 1] in June 2011 and it had been arranged by an agent of some local influence, [Mr A], for the applicant to travel to [Country 2] where he would seek asylum. However, there are aspects of the applicant’s claims as to how he travelled to [Country 1] and his return to Sri Lanka in October 2011 that indicate that he was not a person of interest to the authorities for the reasons claimed. Not least is there is no claim that the applicant was apprehended on return. The applicant claimed he held fears on return because he had paid a third person to obtain his Sri Lankan passport as much as 10,000 Sri Lankan rupees. Using a third person to obtain passports in Sri Lanka does not mean the applicant did not travel on with his own identity or that it was fraudulently obtained.
It has been put to the applicant that he did not hold a genuine or urgent or deep fear of returning to Sri Lanka because he returned to his country of reference after arriving in [Country 1] without seeking asylum in that country which is a signatory of the Refugees Convention. The applicant has argued that he realised he was in a dangerous situation. On balance, the Tribunal accepts the applicant returned to Sri Lanka because he realised a safe route to [Country 2] was unlikely and that there were foreseeable perils in remaining in [Country 1] which was poor, politically unstable and unfamiliar to him. It accepts that the applicant returned to Sri Lanka because he judged the risk was greater in [Country 1] than in Sri Lanka.
The applicant was not a person of interest to the authorities on return from [Country 1]. The officials on arrival considered the applicant to have travelled on a valid Sri Lankan passport under his actual identity. They were entirely uninterested in his ethnicity, political opinions, imputed or otherwise, his socio-economic status or any other aspect of the applicant.
Ethnicity, religion and geographic location
It is a salient feature of the applicant that he is a Tamil who is a Tamil speaking Sri Lankan.
According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance. Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.
A number of militant groups emerged to advance the cause of Tamil statehood. The most prominent of these, the LTTE/Tamil Tigers, formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007–09, culminating in the military defeat of the LTTE in May 2009. In total, Sri Lanka’s 26-year civil war is estimated to have claimed 100,000 lives and displaced over 900,000 people.
The Tribunal cannot overlook the ethnic dimensions of Sri Lanka’s civil war, coupled with previous language policy that was discriminatory toward the Tamil community, meaning ethnicity and language are sensitive issues in Sri Lanka. Since 1987, Tamil has become an official language and English is, in practice, a lingua franca between communities.
DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.
Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.
The applicant’s home area is the North Western Province. This province has a sizeable Tamil community but is not subject to the same post-conflict encounters with and monitoring by the authorities as Tamils from the Northern and Eastern Provinces which saw the most intensive fighting between the LTTE separatists and the armed forces of Sri Lanka. The North Western Province has been known for accommodating internally displaced Tamils from the Northern and Eastern Province and Tamil residents in the applicant’s home area, especially in fishing communities, have been subject to official harassment for national security reasons during the civil war and in the immediate post conflict period. However, the applicant does not claim to have been an actual LTTE supporter and is not a supporter of Tamil separatists who support an ethnonationalist state for Tamils to seek independence, militarily or otherwise, from the Sri Lankan state. It is the Tribunal’s assessment that, with the passage of time since the end of the civil war, the chances or risks of serious harm towards Tamils from North Western Province imputed with LTTE sympathies or with actual separatist political opinions by the authorities, has waned to the point whereby the Tribunal finds the chances of such harm based on the applicant’s accepted ethnicity, language and political opinion, imputed or otherwise, is insubstantial and remote and do not amount to a real chance.
The Tribunal accordingly finds that while the applicant will face a real chance of social discrimination based on his ethnicity and political opinion, the harm arising from social discrimination does not amount to being serious harm, should he return to his home area in North Western Province. Furthermore, the Tribunal assesses that the applicant, imputed or otherwise, only faces a remote and isolated chance of serious harm including whereby he will be physically ill-treated or experience a loss of liberty or life, for the essential and significant reason arising from his Tamil ethnicity, his language, his home area and his political opinions, imputed LTTE associations or a combination of these reasons, either on arrival or in the community in his home area in Sri Lanka into the reasonably foreseeable future.
Similarly arising from the same country information, the Tribunal has substantial grounds for believing that the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will have a real chance of suffering harm for reasons arising from his Tamil ethnicity and political opinion, but the harm does not amount to significant harm.
Therefore, the applicant does not satisfy ss 36(2)(a) and 36(2)(aa) based on his ethnicity as a Tamil, as a Tamil speaking Sri Lankan from the North Western Province or based on his actual political opinions which are not supportive of the LTTE or any imputed Tamil separatist associations.
Whilst not specifically claimed by the applicant, the Tribunal considered country information in relation to the applicant’s Hindu religion. The applicant claimed in his 866 Form that his religion is ‘Hindu’. The applicant confirmed this to be the case and it is accepted to be the case.
Religion plays a significant role in daily life in Sri Lanka and strongly correlates with ethnicity. Hindus make up about 12 per cent of the Sri Lankan population. Most Tamil Sri Lankans are Hindu. Hindus account for a majority of the population in the Northern Province, and practise their faith freely there and elsewhere in Sri Lanka. In the most recent DFAT report, it is assessed that, while laws or official policies generally do not discriminate on the basis of religion, adherents of religions other than Buddhism face a low to moderate risk of official discrimination from government authorities, which can affect their ability to build places of worship, seek recourse for religiously-motivated attacks, and practise their faith freely. On the basis of available country information, which indicates that Hindus face some societal discrimination by the majority Buddhist community, the Tribunal finds that the applicant, as a Hindu or as a Tamil Hindu, faces a real chance of official and societal discrimination based on his religion, but the degree of discrimination does not amount to him being subjected to serious harm amounting to persecution, should the applicant return to Sri Lanka.

Similarly arising from the same country information, the Tribunal has substantial grounds for believing that the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will suffer a real chance of some harm for reasons of his Hindu religion, including in combination with his Tamil ethnicity, but the harm does not amount to significant harm.
Therefore, the applicant does not satisfy ss 36(2)(a) and 36(2)(aa) in this regard.
Forced returnee/failed asylum seeker claims
The Tribunal accepts the applicant departed illegally from Sri Lanka in 2012. Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service and Sri Lankan Navy Intelligence. These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
As mentioned above, the Tribunal does not accept the applicant is subject to warrant and has made a finding that he has provided bogus documents to advance this claim. It does not accept the applicant as a forced returnee will be identified as someone trying to avoid court orders or warrants or summons. Neither does the Tribunal accept the applicant is on the central database as a person with a terrorist background or political activist who is seriously engaged in a Tamil separatist movement. This claim was substantially undermined by the applicant’s return to Sri Lanka from [Country 1] in 2011 without being apprehended.
The applicant, nonetheless, will be apprehended on arrival and subjected to identity checks as cross referencing. The Tribunal accepts that he will be fined for departing Sri Lanka but this will not lead to medium to long-term remand but he would be released into the community after a bond or fine is paid and he may be subject to ongoing court appearances or the monitoring of local authorities. While the applicant may endure a degree of stress from these procedures, the Tribunal does not accept the applicant’s real chance of such encounters with the authorities amounts to serious harm for the essential and significant reasons that the applicant will be a forced returnee or failed asylum seeker in returning to Sri Lanka or any related or combined reasons relating to his ethnicity, religion or that he is from North Western Province.
Based on the same country information and the abovementioned findings about the applicant’s accepted circumstances, the Tribunal does not have substantial grounds for believing that the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will suffer a real chance of harm as a forced returnee or failed asylum seeker from Sri Lanka for reasons of his Hindu religion, including in combination with his Tamil ethnicity and political opinion, but the harm does not amount to significant harm.
Therefore, the applicant does not satisfy ss 36(2)(a) and 36(2)(aa) in this regard.
Does the applicant face a real chance of serious harm due to being perceived as a wealthy Tamil?
Credibility findings about the applicant’s earlier claims for protection
The Tribunal has been invited to consider the applicant’s earlier claims for protection were not credible in the context of the adverse credibility findings above.
However, the Tribunal is mindful that it made an undertaking to the applicant to look at his claims with fresh eyes. In doing so, the Tribunal has noted that there was an overall consistency and plausibility in the applicant’s claims advanced both during the entry interview, at the time of application and right up to the time of the scheduled hearing and it accepts the following as credible:
·     The applicant belongs to an entrepreneurial family which had interest in a number of [specified] ventures;
·     Two Tamils from Eastern Province, named [Mr B] and [Mr C], worked at one of the [product 1] farms owned and operated by the applicant’s family in 2010;
·     In late December 2010, the applicant and his father were questioned about the employers as suspected LTTE operatives, as claimed;
·     The applicant and his father were unaware of their LTTE connections but were detained because they were providing material support of the LTTE operatives until a local Tamil man of influence named [Mr A], intervened to have them released;
·     Two days after the applicant’s release, the applicant received a call from [Mr A] who informed him that the authorities were coming to his house and he needed to provide them [amount] Sri Lankan rupees (around [amount] Australian dollars). The money was apparently part of the agreement to have the applicant released;
·     Panicked, the applicant borrowed the money and for three months, the applicant did not have difficulties; and
·     The applicant’s family continued to be harassed by the CID. On the advice of [Mr A], the family feared the CID would continue to extort them for money to avoid the applicant from being arrested and paid [Mr A] to help the applicant depart for [Country 2] via [Country 1].
In accepting these aspects of the applicant’s earlier claims, the Tribunal notes the interest in the applicant and his family by the local CID is corruptly pecuniary and not motivated by national security. The applicant’s family owns a number of successful businesses and have become the target of extortive threats to arrest the applicant under national security provisions by the authorities.
Furthermore, the applicant has implied that the family came to rely on [Mr A] as a broker in resolving these difficulties without explicitly mentioning that [Mr A] has a pecuniary and exploitative interest in the extortion of the applicant and his family, in making inadequate and dangerous arrangements to traffic the applicant first to [Country 2] via [Country 1], and then later by illegally departing Sri Lanka to Australia as an irregular maritime arrival.
In this regard, the Tribunal notes the legal submission from November 2022 encouraged the Tribunal to consider the role of [Mr A] in the applicant’s past challenges with extortive behaviour:
[The applicant] was asked at the interview with the Department on 5 July 2013 how he knew that the authorities in Sri Lanka were not involved with [Mr A] and detained him as a way to extort money from him. [The applicant] responded at the interview that he did not know and [Mr A] could be involved as they were asking for more money. We note that in the same interview, [the applicant] said that he was asked by the CID officers about the two guys working at the farm when he was detained, and he was also accused of being involved with the LTTE.
[The applicant] has consistently claimed that the CID told him that the reason why he was detained in Sri Lanka was because he employed two people who were members of the LTTE, and they suspected he was collaborating with the LTTE. This includes at his entry interview where the applicant was asked why he left Sri Lanka and he said ‘… the problem is that the two of the people working for me are LTTE, that is what the CID told me and the CID are telling me I have been feeding the LTTE and looking after them…’.
We submit that it is possible that [Mr A] was trying to extort [the applicant] and get money from him. However, as [the applicant] has consistently claimed that was not the main reason why he was detained by the police in Sri Lanka as he was told.
Whether the applicant avoided further extortive attempts by corrupt CID officers by moving from property to property with the support of family and friends is not germane to the Tribunal’s consideration. What is pertinent is that the Tribunal accepts the applicant, as a Tamil who was perceived as wealthy or to belong to a wealthy family, was vulnerable to false accusations and extortive threats by corrupt members of Sri Lanka’s law enforcement in North Western Province and accepts that he resolved that such physical harassment was sufficiently severe that he resolved to depart.
In accepting these past incidents as credible, the Tribunal is required to considered whether the applicant, once in the community, will face a real chance of serious harm for the essential and significant reason that the applicant is perceived as a wealthy Tamil or from a wealthy Tamil family, should he return to his home area of North Western Province and Sri Lanka more generally.
In parenthesis, the Tribunal accepts that being a wealthy Tamil, perceived or otherwise, is a membership of a particular social group for the purposes of the Refugees Convention.
It further notes that the nexus profile of the applicant as a perceived wealthy Tamil will be heightened by his returning from Australia, a wealthy Western country, where he has been residing for a sustained period of time. This is because many Sri Lankans will assume the applicant has returned to his country of citizenship with considerable savings.
The Tribunal notes that the applicant was released from official remand by members of the CID on the condition that bribes were paid to officials at a later date. Ostensibly he and his father had been arrested on the basis of harbouring claimed LTTE operatives who have been employed by the family of the applicant. These baseless claims were peddled to instil fear into the applicant and his family that they would be detained under anti-terror or national security laws. Had the applicant’s family not participated in the bribery on these grounds, the applicant would have faced rounds of accusations of holding LTTE or separatist sympathies leading to more demands of cash.
This was clearly corrupt and extortive behaviour whereby the authorities had unlawfully and wrongfully used actual or threatened force against a person or property or the threat of serious reputational damage or further unfavourable government action. The applicant departed Sri Lanka to avoid the frequency of such behaviour by the authorities. The Tribunal accepts that his father also departed Sri Lanka for periods of time to avoid such behaviour.
The Tribunal accepts that should the applicant return to North Western Province, he will face a real chance of the authorities resuming physical harassment of him, including being remanded for brief periods of remand until his release is corruptly arranged and frequent violence to property and person carried out to ensure compliance with corrupt demands. It will involve using the monitoring and surveillance of returnees who illegally departed and subject him to court orders to report to local authorities and the threat of accusations that the applicant is involved with crime or even seditious behaviour.
Persecution involves serious harm under s 91R(1)(a). Significant physical harassment is a form of serious harm which is listed non-exhaustively as an example of serious harm under s 91R(2). Physical harassment does not necessarily include brief periods of detention and does not necessarily amount to serious harm. The High Court observed in obiter that temporary detentions of a person fall naturally within the description of physical harassment and so fall readily within s 91R(2)(b). A determination of whether temporary detention amounts to significant physical harassment for the purpose of that section will require the decision-maker to consider the gravity and frequency of the incidents in which harassment is said to have occurred, a task of fact and degree.[1]
[1] MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [51].
The Tribunal is satisfied that should the applicant return to his home area the same cycle of extortive behaviour, likely aided and abetted by cynical and opportunistic characters like [Mr A], will have a real chance of reoccurring for the same reasons it led to his departure to Australia more than 10 years ago, and that the physical harassment will be frequent and severe amounting to serious harm for the purposes of ss 91R(1)(b) and 91R(2)(b).
Is there protection available to the applicant?
To satisfy the refugee criterion in s 36(2)(a) of the Act, as it applies to protection visa applications made prior to 16 December 2014, an applicant must be a person in respect of whom Australia has protection obligations under the Convention.[2] Article 1A(2) of the Convention states that the term ‘refugee’ shall apply to 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.
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
[2] This part of the chapter is concerned primarily with the concept of protection in the Convention definition. However, the concept also has a role to play in theories as to the purpose of the Convention. The competing theories – ‘protection’ and ‘accountability’ – are discussed briefly below in relation to circumstances where there is no functioning state apparatus.
Even before the 2022 economic and political crises, corruption and poor policing was widespread in the applicant’s country of reference according to the DFAT Country Information Report on Sri Lanka in December 2021.
According to the Global Corruption Barometer, 79 per cent of Sri Lankans think government corruption is a big problem while 16 per cent report having paid a bribe to receive a public service in the last 12 months. Local sources indicate that while much corruption in Sri Lanka is at a senior enough level so as not to affect the lives of ordinary people (such as corruption in relation to government procurement or money laundering), there does exist petty corruption, such as the bribes paid by some parents for their children to attend a good school. Similarly, Transparency Sri Lanka states that, in a country with a large and inefficient public service, often “personal connections mean regulations are bypassed”.

100. The report goes on to state that police officers are not well paid, and individual officers reportedly engage in petty corruption, such as taking bribes instead of issuing traffic fines, to supplement their income. There are several measures in place for the public to make complaints to the police, including directly to the officer-in-charge at local stations, the public complaints department or via the internet. Official statistics on the uptake of this service are not publicly available.
101. The Tribunal has also placed some weight in one high-profile case about historical past crimes involving state officials. The recently retired Chief of the Defence Staff (head of the Sri Lankan military), Admiral Ravindra Wijegunaratne, was remanded in custody on 28 November 2018 for allegedly threatening a witness and attempting to remove the lead police investigator in a case involving the abduction and murder of 11 Tamil youths by Navy personnel in Colombo in 2008 and 2009. As of 2021, he is yet to face trial. The bodies of the 11 men, who came from wealthy families and were allegedly abducted for ransom, have never been found. The current Chief of the Defence Staff and Chief of Army, General Shavendra Silva, is banned from travelling to the United States due to accusations of civil war-era war crimes.
102. While this case is raised as the kind of relevant case to progress for justice for war-era victims and institutional ‘truth-seeking’ efforts, that the motivation of the alleged crimes appear to be financial and the targets appear to be youths who were members of wealthy Tamil families gives added weight to the argument that wealthy Tamils are systematically targeted for significant physical harassment and there is a lack of accountability to be faced by such corrupt and violent officials when crimes are perpetuated against wealthy Tamils.
103. Extortion and kidnapping for ransom were common during the war, particularly in the north and east. DFAT reports that, while they are still known to occur, their incidence has decreased considerably in the post-war period. Where extortion and kidnapping for ransom occurs, the motive is usually business-related.
104. DFAT further assesses that wealthy Sri Lankans face a low risk of extortion or kidnapping for ransom; however, in the context of the current crisis in Sri Lanka and the fact that corruption is hazardously widespread among Sri Lanka’s poorly remunerated law enforcement personnel, the Tribunal is concerned that wealthy Tamils are more vulnerable to corruption than Sinhala businesspersons, not least because national security laws have typically been disproportionately used against Tamils. The Tribunal finds that the applicant would not be able to avail himself of the protection of the authorities. The Tribunal notes under Transparency International’s Corruption Perception Index 2020, Sri Lanka is rated 94th out of 180 countries. In 2022, Sri Lanka is rated 101st, signifying a corrosion in standards.
105. According to the situational report provided to the applicant under s 424A, Sri Lanka is in the midst of an economic crisis, the worst since the country’s independence in 1948. Sri Lanka’s economic collapse, characterised by high inflation, rising commodity prices, power shortages and lack of fuel, has been long in the making but came to a head in early 2022. Sri Lanka owes US$51 billion, of which it must pay US$28 billion by 2027. Sri Lanka announced it would not be able to meet its debt commitments in April 2022, and defaulted on its debt repayments for the first time in May 2022. The economic crisis has led to severe shortages in food, fuel and other essential goods. About 73 per cent of households have either lost their source of income or had their income reduced. The reduction in agricultural production, along with rising food and fuel prices, has made food unaffordable for a substantial segment of the population. Approximately 6.3 million people, or 30 per cent of the population, is food insecure. Food price inflation is at 90 per cent. Many Sri Lankans are down to two meals a day, and officials have told people to grow food if they can.

106. Police have been affected by the economic crisis. Police have been required to maintain order at fuel queues, impacting on their ability to conduct other forms of policing. Reports indicate that crime, including gender-based violence and crimes against children, is increasing. At the same time, government services, such as domestic violence shelters, have limited capacity to respond. Security forces have largely showed restraint in their efforts to control protests and keep order, although there are reports of incidents of violence. Police have used tear gas, water cannons and rubber bullets against protestors.
107. The government has imposed States of Emergency throughout the crisis. A State of Emergency allows increased powers for police to search, arrest and detain, and to impose and enforce curfews. Several UN human rights experts and non-government organisations have expressed concern at the repeated use of emergency measures. On 27 July 2022, Sri Lanka’s parliament approved new emergency regulations which impose penalties, including life imprisonment, for offences such as causing ‘mischief’.
108. While the economic crisis in Sri Lanka appears to have somewhat stabilised at the time of writing this decision, the Tribunal is not confident that the applicant will reasonably access any anti-corruption mechanisms from the authorities or that they will be meaningfully implemented. There is only a far-fetched chance that the authorities will investigate corrupt officials while Sri Lanka’s economic problems are not foreseeably soluble into the short to medium term future. After all, members of Sri Lanka’s police force are not immune from the ongoing privations and hardships faced by many Sri Lankans and are more vulnerable to withhold protection or act on anti-corruption complaints under such deteriorating circumstances. Neither is his access to protection and justice enhanced by his ethnicity and perceived wealth.
109. As such, the Tribunal finds that the applicant is unable or, owing to such fear, unwilling to avail himself of the protection of that country.
110. Therefore, there is a real chance the applicant would suffer serious harm as contemplated by ss 91R(1)(b) and 91R(2) of the Act at the hands of the Sri Lankan authorities on return to Sri Lanka in the reasonably foreseeable future. The Tribunal find that the essential and significant reasons that the applicant will encounter serious harm will be his membership of a particular social group of Tamil Sri Lankans perceived to be wealthy or belonging to wealthy families, as per s 91R(1)(a) and that such serious harm would involve systematic and discriminatory conduct as per s 91R(1)(c).
111. Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.
112. With respect to the question of whether the applicant could relocate internally within Sri Lanka to avoid the harm he fears, the Tribunal notes that the applicant has a well-founded fear of persecution at the hands of the Sri Lankan authorities, who exist nationally. Given the widespread nature of corruption among policing, it will be possible for corrupt officials in one part of Sri Lanka to have the applicant arrested and detained in all other parts of Sri Lanka through vexatious warrants and accusations of the applicant being a threat to national security or as someone who breaches states of emergency laws.
113. For the reasons set out above, the Tribunal is satisfied that the applicant satisfies Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol.
114. As mentioned above, s 36(3) of the Act does not apply in this matter.
Conclusion
115. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.
116. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
117. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Brendan Darcy
Member

[2023] AATA 1320

16 February 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction