2012375 (Refugee) - [2025] ARTA 1377

2012375 (REFUGEE) [2025] ARTA 1377 (26 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012375

Tribunal:General Member D Hughes
Date:26 February 2025

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 26 February 2025 at 2:50pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – perceived opposition – murder report to the police – threats from an extremist group – attempted kidnapping – return visits to Sri Lanka – third country protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, ss 99, 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 368, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant, who claims to be a national of Sri Lanka, applied for the visa on 24 May 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is [an age] year old male born in [Town 1] in Sri Lanka.
According to the Department decision, he was granted a Maritime Crew (Subclass 988) visa on 11 August 2014. He arrived in Australia on a Visitor (Subclass 600) visa [in] April 2016. He applied for a protection visa on 24 May 2016.
Evidence before the Department
The applicant’s protection visa application included details about his background and claims for protection. The applicant also provided a copy of the biodata page from his Sri Lankan passport. The applicant subsequently provided the Department with a full copy of that Sri Lankan passport.
In his 2016 protection visa application, the applicant claimed his life was at risk in Sri Lanka, and that he faced a murder threat from a group of persons linked to an extremist group. He also indicates he was about to be kidnapped by this group. He states that he had gone to the police, but they refused to accept his complaint. He claimed he had moved to a different part of the country, but he was still in fear for his life. He indicates that he sold one of his properties and relocated within Sri Lanka, but the situation was the same.
On 7 June 2020, the applicant provided the Department with a further written statement expanding on his protection claims ahead of the visa interview. The applicant claimed to fear harm from the [members] of [Family A] because he had attempted to inform the police of [Mr A’s] involvement in the death of [Mr B] in 2012. He claimed to be in hiding until 2013, when he went to [Country 1] for work. He returned to Sri Lanka in [2014], but [Family A] started looking for him, so he returned to [Country 1]. He then claimed to have again returned to Sri Lanka to help his mother sell her properties and relocate. He claims [Family A’s] [associates] visited his friends and asked his whereabouts. He then fled to Australia on a tourist visa. He claims this is because [Family A] do not have connections in Australia.
The applicant was interviewed by a delegate of the Department on 17 June 2020. At that interview, the applicant talked about his background and claims for protection.
He advanced claims about his intentions to involve himself in politics after he left school in [Country 2] and returned to Sri Lanka. He referred to his political involvement in Sri Lanka, and the issues he faced from opposition political parties.
The applicant also spoke about the threat, attack, injuries and kidnapping he faced from an extremist group, which he believed was in 2013 or 2014, and how he was able to escape from this extremist group.
The applicant also gave further evidence about his studies in [Country 2], his past meeting with [Mr A] at a friend’s party in 2010 and statements that were made that [Mr A] or his brother intended to harm or kill [Mr B], the death of [Mr B] in 2012, the applicant’s subsequent attempt to make a report to the Sri Lankan police, his fears that the police contacted and advised the [Official A], and his claim to have fled the police station. He contended he or his family were monitored and the police or [Family A's] [associates] went to his family’s home to find him. He also gave evidence about his work and travel over the intervening years before he came to Australia.
As discussed below, the delegate did not accept his claims were credible and found that he was not owed protection under s 36(2) of the Migration Act.
Evidence before the Tribunal
The applicant lodged his application for review on 3 August 2020. He provided the Tribunal with a copy of the delegate’s decision dated 7 July 2020.
Procedural history
On 9 July 2024, the Tribunal wrote to the applicant and requested he complete a ‘pre-hearing information form’. On 15 July 2024, the applicant completed that form online. He confirmed his contact details and hearing availability. He indicated there were no issues that would affect his ability to partake in a hearing (for example, any health problems).
On 9 August 2024, the Tribunal invited the applicant to a hearing at 1:30pm on 12 September 2024 at the Tribunal’s Melbourne registry.
On 16 August 2024, the applicant provided a completed hearing response to the Tribunal via email. He confirmed he would attend the hearing and there were no issues that would affect his ability to participate in the hearing. He indicated he intended to provide written witness statements, written submissions, affidavits and country information. He also requested the participation of a witness.
On 11 September 2024, the applicant was advised that the hearing was postponed as the Tribunal was unable to proceed with the hearing at that time.
On 23 September 2024, the Tribunal invited the applicant to a rescheduled hearing at 10:00am on 7 November 2024 at the Tribunal’s Melbourne registry.
On 6 November 2024, the day before the scheduled hearing, the applicant wrote to the Tribunal requesting an adjournment of the rescheduled hearing due to ‘unexpected health issues’. The applicant did not specify his condition, but requested the Tribunal reschedule the hearing to a later date to allow him to participate in the hearing and provide sufficient time for his recovery. He indicates a willingness to submit a medical certificate as evidence of his condition.
Although his request was limited in detail, on Friday 6 November 2024 the Tribunal wrote to the applicant and advised him that it had received his request and had rescheduled the hearing. The Tribunal notified the applicant that the hearing had been rescheduled to 1:00pm on 15 November 2024. The Tribunal was of the view that this was a reasonable period in the circumstances.
The applicant did not contact the Tribunal following its notice of the rescheduled hearing.
The applicant did not attend the hearing at the scheduled time, date and place. The applicant also did not contact the Tribunal about his non-attendance.
On 27 November 2024, the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). The applicant was notified of that decision on 28 November 2024. He was also advised that he could seek reinstatement of the dismissal by 27 December 2024.
On 23 December 2024, the applicant wrote to the Tribunal and requested the application be reinstated. He states that he was unable to attend the hearing on 15 November 2024 due to a serious health issue. He states that he has been suffering from a medical condition that has resulted in the loss of his sense of smell and taste, which has severely impacted his mental well-being, leading to a significant mental breakdown. He states that his general practitioner has referred him to an ENT specialist for further assessment and treatment. However, the earliest available appointment is on 20 January 2025.
A referral letter, dated 5 November 2024, from [Doctor A] of [a named medical centre], states that the applicant is being referred to a specialist ([Specialist A]) for ‘opinion and management of severe [medical condition 1]’.
On 6 January 2025, having regard to the applicant’s request, the Tribunal reinstated the application under s 368C(3)(a) of the Migration Act. On 7 January 2025, the Tribunal notified the applicant that his application had been reinstated.
On 7 January 2025, the applicant was sent a notice of hearing. The hearing was scheduled for 1:30pm on 21 January 2025 at the Tribunal’s Melbourne registry.
On 15 January 2025, the Tribunal received an email from a third party email address ([specified]) requesting a postponement of the hearing.
On 16 January 2025, the Tribunal wrote to the applicant advising it had received an email from an unknown third party email address and that it would not be considered. The Tribunal advised the applicant to use his nominated email address to communicate with the Tribunal.
On the same date, the applicant wrote to the Tribunal from his nominated email address. He requested an adjournment of the hearing due to a medical procedure. He stated he is scheduled to undergo surgery with the ENT Specialist [Specialist A] for his [medical condition 1] on 20 January 2025, and that he will be unfit to attend the hearing the following day. As evidence of that, he again provided his letter from [Doctor A] dated 5 November 2025.
On 17 January 2025, the Tribunal wrote to the applicant. It noted the medical certificate he had provided was from November 2024, and did not refer to any surgical procedure. The Tribunal requested further evidence of the procedure and the date of the procedure.
On 20 January 2025, the applicant wrote to the Tribunal and advised that, as per the conversation with his GP, he ‘might need to undergo a surgical procedure’ and referred him to a specialist. He confirms his first appointment with the specialist was scheduled for 20 January 2025 at 1:45pm. He attaches a letter from his GP.
The letter from [Doctor A], dated 18 January 2025, states that the applicant is attending his clinic for medical conditions. It states he has been suffering from [medical condition 1] associated with [symptoms], and that he has been referred to an ENT specialist ([Specialist A]). The letter from [Doctor A] makes no reference to the applicant having any mental health concerns, whether related to his condition or otherwise. Nor does it suggest that the applicant is unable to work or participate in a hearing.
On 20 January 2025, the applicant wrote to the Tribunal again. The applicant acknowledges the Tribunal’s request for evidence of his surgical procedure. The applicant clarifies that the process of completing the necessary medical consultations and diagnostic procedures as recommended by his specialist, and the timeline for obtaining the required documentation is dependent on the availability of appointments and system updates by the medical professionals involved.
The applicant further states that following his consultation with [Specialist A], he has been referred for further immediate consultation and diagnostic tests. He claims that he has also personally liaised with [Doctor B] regarding his case. He claims he has been advised by [Doctor B’s] team to wait for further instructions as they require at least 24 hours to update their system.
Attached to his email were handwritten notes indicating further appointments on 23 and 30 January 2025, and a further appointment with the applicant’s GP; an imaging referral for [scans] from [Specialist A] signed 20 January 2025; and a business card for [Doctor B], who specialises in [specialty area].
The Tribunal was of the view that the applicant had incorrectly advised it of an imminent surgical procedure, but it was also conscious that the applicant may have misunderstood the referral process. On 21 January 2025, the Tribunal advised the applicant that it had agreed to a further postponement of his hearing.
On 22 January 2025, the applicant was sent a notice of hearing. The notice indicated that the hearing was rescheduled for 9:00am on 7 February 2025 at the Tribunal’s Melbourne registry. The Tribunal considered this to be a reasonable period to accommodate his appointments.
At 12:35pm on 6 February 2024, the day before the rescheduled hearing, the applicant emailed the Tribunal requesting a further adjournment of the hearing. He states:
I am currently undergoing medical treatment for severe [medical condition 1] and persistent [symptoms]. My treating specialist, [Specialist A], has confirmed that I require ongoing treatment, including [medication and tests] and a potential surgical intervention at [Hospital 1]. Additionally, I have been referred to [Doctor B] at [Health Service 1] for further evaluation, but I am still awaiting confirmation of my appointment from [Health Service 1].
Despite my ongoing treatment, my [symptoms] remain severe, significantly affecting my overall health and well-being. Given the importance of this medical evidence to my case, I respectfully request additional time to complete my medical assessments and obtain all relevant documentation.
The letter from [Specialist A], dated 21 January 2025, confirms the applicant has troubles with [medical condition 1] and has severe [symptoms]. It states he has had the condition for most of his life, but in the last six months, it has gotten particularly bad. [Specialist A] states the applicant has [medical condition 1].
[Specialist A] indicates that they should treat the applicant multifactorially, using [medications]. He states the applicant has also been referred to the [Hospital 1] for surgical consideration. [Specialist A] also referred the applicant to [Doctor B] for [testing] and [treatment].
The information provided by the applicant indicates he is suffering from [medical condition 1] and severe [symptoms]. It indicates a range of interventions, none of which appear urgent or imminent. While it indicates his condition is serious, there is no suggestion his condition prevents him from working or participating in daily life, or that he would be unable to participate in a Tribunal hearing.
On 6 February 2025, at 1:54pm, the Tribunal wrote to the applicant to advise him that his adjournment request had been declined and that the hearing would proceed as scheduled. The Tribunal noted that his medical evidence did not indicate he was unfit to participate in a hearing.
The applicant did not attend the hearing as scheduled on 7 February 2025. He did not again contact the Tribunal to request that the hearing be rescheduled or provide further medical evidence about his ability to participate in a hearing. He has not contacted the Tribunal to explain his non-attendance at the scheduled time and date.
Tribunal may dismiss application if applicant does not appear
The Tribunal has considered whether to again dismiss the application under s 99 of the ART Act. In this regard, the hearing notice clearly indicated the time, date and place of the hearing. The Tribunal considers the applicant was aware that his adjournment request had been declined and that the hearing was to proceed as scheduled. The Tribunal notes the hearing notice states as follows:
If you are not able to participate in this hearing, you need to advise us as soon as possible. Please note that we will only make changes if satisfied that you have a good reason for being granted an adjournment. The Presiding Member will consider any submissions you make about why it is not suitable or possible for your hearing to proceed and you will be advised of the outcome of that consideration before the hearing. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
The Tribunal is satisfied the applicant failed to appear at the hearing of 7 February 2025. It is also satisfied that the applicant received appropriate notice of the date, time and place of the hearing. In these circumstances, the Tribunal may dismiss the application.
The Tribunal considers the applicant has had a full and fair opportunity to participate in a hearing or alternatively provide evidence that indicates he is not able to participate in a hearing. He has elected not to do so.
The Tribunal considers it has a reasonably complete picture of his health situation. While it accepts his health concerns are serious and require treatment, the Tribunal is not satisfied the applicant has provided evidence that he is unable to participate in a hearing. The Tribunal finds it significant that he did not attend the rescheduled hearing, or contact the Tribunal to explain his non-attendance.
The Tribunal does not see any utility in issuing a further dismissal of this matter. Weighing all the evidence before it, the Tribunal has decided not to dismiss the application under s 99 of the ART Act.
Circumstances in which Tribunal may reach decision without a hearing
Section 106 of the ART Act provides that the Tribunal may reach a decision without a hearing in certain circumstances. In this instance, under s 106(5) of the ART Act, the Tribunal is satisfied the pre-conditions are met.
The applicant has failed to appear at a Tribunal case event (the 7 February 2025 hearing) and the applicant is not a non-participating party to the proceeding: ss 106(5)(a) and (b) of the ART Act.
The applicant was sent a notice to the hearing on 22 January 2025, more than two weeks before the scheduled hearing. That notice indicated the date, time and place of the hearing. The applicant responded to that hearing notice via email. The Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the hearing: s 106(5)(c) of the ART Act. The Tribunal is also satisfied that he in fact received that notice. He was also advised that his last request for an adjournment of the hearing was declined.
The Tribunal considers there is evidence before it of the applicant’s identity, nationality and protection claims. The applicant provided a copy of the delegate’s decision, and the Tribunal is satisfied the applicant is aware of the potential issues arising in this review.
The applicant has previously indicated that he intended to provide written witness statements, written submissions, affidavits and country information. As discussed below, he was given an opportunity to provide any further evidence or submissions in support of his review, however it appears he has elected not to do so.
Although a hearing would have enabled the Tribunal to directly address the matters arising in this review, the Tribunal is satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the applicant participating in a hearing: s 106(5)(d).

In all the circumstances, having regard to all the documents and evidence before it, as well as the circumstances surrounding the applicant’s failure to appear at the hearing or provide further evidence of submissions in support of his application, the Tribunal has decided to make a decision in this proceeding without a hearing.
Further evidence or submissions
On 17 February 2025, the Tribunal wrote to the applicant to confirm that he did not appear at the scheduled hearing and that the Tribunal would proceed to make a decision in this matter without a hearing. The applicant was advised that he should provide any further evidence or submission he would like the Tribunal to consider by Friday 21 February 2025.
The applicant did not respond to that opportunity, and no further contact, evidence or submissions were received from the applicant by 21 February 2025, nor has anything been received at the time and date of this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Migration Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Migration Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant satisfies the criteria for grant of a protection visa in s 36(2) of the Migration Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant provided the Department with a copy of his Sri Lankan passport issued in March 2013. There is nothing to suggest any concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a national of Sri Lanka.
There is no information before the Tribunal to suggest the applicant has citizenship of any other country, or that he presently has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Sri Lanka is his receiving country and has assessed his claims against that country.
In his protection visa application, the applicant claimed to have studied in [subject] over several years in Sri Lanka and [Country 3], culminating in studies at the [Country 2 institution] between [specified years]. He claimed between [year] and 2013 he was unemployed in Sri Lanka. Between November 2013 and September 2014, he worked for [Employer 1] in [Country 1]. He did not work between September 2014 and April 2015, but then worked for [Employer 2] as [an occupation 1] in the capital of Sri Lanka (Colombo) between May 2015 and April 2016. He confirmed these details in his visa interview.
The applicant’s passport appears to confirm his 2013 travels to [Country 3], his 2014 travel to [Country 4], and his [Country 1] work visas and 2013 and 2014 travels to that country. As the passport was issued in 2013, it provides no evidence of his earlier travel, including his claimed period of study in [Country 2] in [earlier year].
Protection claims
The applicant’s protection claims are essentially two-fold, albeit they may be related. His initial protection claim was that he was threatened, attacked, harmed and kidnapped (or there was an attempt to kidnap him) by an unnamed ‘extremist group’ in 2013 or 2014.
In 2020, he made a further claim that after returning to Sri Lanka from his studies in [Country 2] in [year], he intended to involve himself in politics. He claims that after returning to Sri Lanka, he was being targeted by [Family A] and [their associates] because he had sought to inform the Sri Lankan police of [Mr A’] involvement in the death of [Mr B] in 2012.
Delegate’s decision
The delegate’s decision includes the applicant’s written and oral evidence, and her assessment of his claims.
In terms of his claims to have been threatened, harmed and kidnapped by an extremist group, the delegate expressed concerns that the applicant could not name the group, despite his contention that everyone knows the group, and that it had been responsible for the killing of journalists and reporters. The delegate was also concerned that the applicant could not specify the year the attack occurred, claiming 2013 or 2014, and she considered his account was vague and lacking in detail.
In terms of his claims that he intended to become involved politically with [a specified] political party on return to Sri Lanka from [Country 2], the delegate was concerned that the applicant had difficulty naming the political party he intended to be involved with, or its political ideology. She did not accept he was ever politically involved or targeted by other political parties.
In terms of his claims related to the death of [Mr B] and the involvement of [Family A], a concern for the delegate was the plausibility of the applicant’s account that he would make a report to the police based on unverified information from his friend, that he would leave the police station (after claiming he overheard the police contact the [Official A]) and that it would take the police or [these associates] several weeks to visit his family’s home to inquire about him.
A further concern for the delegate in this matter was the applicant’s travel and work history in Sri Lanka and internationally after the claimed events occurred. In particular, his decision to return to Sri Lanka several times after working and/or holidaying in [Country 1], [Country 3] and [Country 4] in the intervening years (2013 to 2014), despite claiming that he was at threat from [Family A], their [associates], and the extremist group.
When the delegate asked the applicant why he did not seek protection in [Country 1], he said he was working and travelling on the first occasion (and it was not necessary to seek asylum) and on the second occasion he returned to put his mother and brother in ‘safe place’.
The delegate also expressed concerns as to how he could return and leave Sri Lanka on several occasions if the Sri Lankan authorities or [Family A’s associates] were seeking to find him. The applicant claimed that he paid a bribe ([amount)) to keep information about his entry and departure from the country secret.
The delegate did not accept the applicant would return to Sri Lanka, and not seek asylum in another country, if he genuinely feared harm in his country. She considered this raised further concerns for her about the credibility of these claims.
In light of her concerns with the applicant’s evidence, the delegate did not accept any of the applicant’s claims were credible, and she was not satisfied he was owed protection under s 36(2) of the Act.
Assessment
Country advice before the Tribunal confirms the existence of groups (paramilitary and criminal) that have in the past been involved in kidnapping and extortion in Sri Lanka.[1]
[1] DFAT, Country Information Report – Sri Lanka, 2 May 2024
The country advice confirms the death of [Mr B] in [2012], and speculation about the means by which [he died].[2] DFAT indicates that there have been instances of high profile police investigating alleged crimes against the military, police or [prominent people], have been harassed or forced to flee the country.[3]
[2] [Source deleted.]
[3] DFAT, Country Information Report – Sri Lanka, 2 May 2024
In terms of his claims to have been targeted by an extremist group, while there is credible advice that groups in Sri Lanka have engaged in violence, kidnapping and extortion, the applicant’s evidence about these matters was limited and general in detail. He has not specifically identified the group that targeted him, the motives for the attack, or provided credible detail about his past claims to have been targeted, harmed, threatened and/or kidnapped, or his claimed escape. He has also not detailed or explained why he would continue to be at threat from this group if he returned to Sri Lanka.
In terms of his claims to have been politically involved in Sri Lanka, the applicant has provided little detail of his political involvement with any political group, or targeting by political opponents. He has also not provided any corroborating evidence of his political involvement.
In terms of his claims relating to [Mr B], the country information does corroborate the death of [Mr B] in 2012, and the suspected involvement of [prominent people]. It also appears from the applicant’s protection visa application that the applicant was living in Sri Lanka at the time of this event.
However, beyond this, there is little credible information before the Tribunal to indicate that the applicant was involved in these matters in any sense, that he had any connection with [Family A members], that he had knowledge of [Family A] involvement in the death of [Mr B], that he reported his concerns to the police, or that he or his family were monitored and his family was visited by the police or army. He has also not provided credible detail of his claims that he was subsequently a target of [Family A], the police, or [Family A’s] [associates] because he had attempted to make a report to the police implicating [Family A members] in the death of [Mr B], or that they continued to seek and threaten him during this period and after he returned to Sri Lanka.
The applicant’s evidence about these matters is limited, as is the applicant’s evidence about what occurred between 2012 and 2016 and how it reconciles with his other claims, including the period in which the applicant studied, worked and lived in various places in Sri Lanka (including Colombo) and abroad.
The applicant has not provided credible details or explanations for his failure to remain in or seek protection while working in [Country 1], or why he returned to Sri Lanka on multiple occasions, despite claiming he was at threat from [Family A] and their [associates], or his claims about the influence of [Family A]. Beyond his limited contentions that he paid bribes, the applicant has not detailed or credibly explained how he was able to avoid being harmed or targeted by [Family A], the police, [Family A’s] [associates], or anyone else, if he had the profile he claims.
The applicant was given multiple opportunities to present evidence at hearing before the Tribunal, and subsequently through written evidence and submissions, however he elected not to do so.
Having regard to the concerns identified by the delegate in her decision, and the limited and general evidence before the Tribunal regarding the applicant’s past claims and fears in returning to Sri Lanka in reasonably foreseeable future, I am not satisfied and do not accept any aspect of his claims for protection beyond his identity, citizenship and that Sri Lanka is his country of reference.
The Tribunal is not satisfied and does not accept he was ever targeted, threatened, harmed, or kidnapped by an extremist group in Sri Lanka in 2013 or 2014 or at any other time. The Tribunal is not satisfied and does not accept he was ever involved in politics in Sri Lanka in any sense, or that he was ever targeted or otherwise faced issues with other political groups. The Tribunal is not satisfied and does not accept the applicant ever had any association with [Family A members], that he had knowledge of the killing of [Mr B], that he reported that information to the police, that he fled from the police station, that he or his family were monitored or his family was visited by the authorities, or that he was in any way a target of [Family A], the police or authorities, [Family A’s] [associates], or anyone else at the time or in the years that followed. The Tribunal is not satisfied and does not accept that the applicant ever paid bribes or needed to take any other steps to return to and leave Sri Lanka safely.
The applicant has not advanced any other claims to fear harm on return to Sri Lanka. As the Tribunal does not accept his substantive claims, it does not consider there is any basis on which the applicant would face any threat or harm if he returned to Sri Lanka, now or in the reasonably foreseeable future.
In view of the assessment and evidence above, the Tribunal is not satisfied the applicant would face a real chance of harm or serious harm, for any of these reasons, should he return to Sri Lanka, now or in the reasonably foreseeable future. It follows that the applicant does not have a well-founded fear of persecution for any of these reasons, and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having regard to the assessment and evidence above, the Tribunal is also not satisfied there is a real risk that the applicant will suffer harm or significant harm for any of the reasons claimed and as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka. It follows that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no claim or evidence before the Tribunal that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. The Tribunal is not satisfied the applicant satisfies the alternative criteria in ss 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearings:                 n/a
Representative:                    n/a
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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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