2012546 (Refugee) - [2024] ARTA 936

2012546 (REFUGEE) [2024] ARTA 936 (5 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012546
Tribunal:General Member M Sheargold

Place:Melbourne
Date: 5 December 2024
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 December 2024 at 8:04am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – supporter and local campaigner for political party – harassment and intimidation by members of other party – other party politician’s fraud and extortion – assaulted by associates of politician and threatened by politician and associate – official inaction, delays and pressure to withdraw complaints – previous loan with excessive interest from associate – relocated several times – application for sponsored work visa unsuccessful – leader of party branch in Australia – conduct not for purpose of strengthening claim – physical and mental health – official complaints against politician and associate in progress – supporting statements – country information – other party in power after recent elections – feared harm not for refugee criterion reason of political opinion – complementary protection – members of family unit wife and children – younger child born in Australia and not registered in home country but eligible for citizenship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4), (5), (6), 5L, 36(2)(a), (aa), (c)(i), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
MIMAC v SZRHU (2013) 215 FCR 35
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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 5 August 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The first, second and third named applicants claim to be nationals of Sri Lanka. They applied for the visas on 31 March 2016, having arrived in Australia [in] February 2016 holding Subclass 600 visitor visas. The fourth named applicant was born in Australia on [Date]. She has not yet undertaken the process for applying for citizenship in Sri Lanka, though the family and their representative concede that she is entitled to do so should she wish to.
The applicants appeared before the Administrative Appeals Tribunal on 9 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who appeared by telephone from Sri Lanka. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) was abolished and replaced with the Administrative Review Tribunal (ART). The applicants had been granted until 18 October 2024 to provide the Tribunal with additional information following the Tribunal hearing and as such, this decision could not be made before the cessation of the AAT. Item 24(2) in Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 requires the proceding to be “continued and finalised by the ART in a manner that the ART considers is efficient and fair.”
Further, subsections (6) to (8) in Item 24 in Part 5 of Schedule 16 of the Transition Act clarify that acts done in relation to an application prior to the transition from the AAT to the ART continue to have effect in the ART; that anything done in accordance with the old law applicable prior to the transition is taken to have been in accordance with the new law; and that anything done by the AAT before the transition is taken to have been done by the ART. However, Item 24(4) directs the ART to, as far as possible, continue the proceeding under the new law that applies. The new law is set out principally in the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and in substantive changes to the Migration Act.
BACKGROUND
The first named applicant is a [Age] year old Sri Lankan man. The second named applicant is his wife, a [Age] year old Sri Lankan woman. They married in January 2010, and for each of them, it is their first and only marriage. The third and fourth named applicants are their children, who are aged [Age] years and [Age] years at the date of this decision. The first three applicants arrived in Australia [in] February 2016 and have remained in Australia continually since that time. Their application for protection was made on 4 April 2016, and after the birth of the fourth named applicant, she was added to the application. The first named applicant was interviewed by the Department by telephone from Western Australia on 24 June 2020.
The first named applicant travelled to Australia for 3 months in 2013, from [March] 2013 to [June] 2013. After he returned home, he applied for a Subclass 457 temporary work visa, but the application was refused. He was granted a further visitor visa on 19 January 2016, and it was this visitor visa on which he and the second and third named applicants arrived.
The first named applicant’s brother is an Australian citizen and he lives with his family in [Suburb 1]. The applicants live close by, and the third and fourth named applicants currently attend [school] in [Suburb 2]. The first named applicant is a trained [occupation], annd in Australia, he works as [a related occupation 1]. He operates his own business, [Business name]. He has 4 part-time employees all of whom are [qualified].
Evidence before the Department
The applicants have had the assistance of their migration lawyer from the beginning of the process of seeking this visa. From the outset, they have made clear that only the first named applicant is making claims for protection, and that the secondary applicants are not raising their own claims for protection.
The first named applicant provided details regarding his claims for protection in statutory declarations given to the Department on 24 March 2016 and 7 July 2019. His first statutory declaration is 23 paragraphs long and the later one was over double that length at 48 paragraphs. The Tribunal summarises the claims in that updated and more detailed declaration as follows:
·the first named applicant’s family are traditionally supporters of the United National Party (UNP) in Sri Lanka because it is a liberalist and economically liberal party;
·he became active with the UNP from a young age and worked closely with his local party leader, [Mr B];
·the UNP’s main political opponent is the Sri Lanka Freedom Part (SLFP), and it is these two parties that form coalitions with minor parties to form government, effectively creating a two party system;
·the SLFP is the dominant party in a coalition known as the People’s Alliance (PA);
·the SLFP’s [senior leader] comes from [City 1], and because of this, SLFP political activists believe that [City 1] is their political birthplace, and they intimidate and harass other political activists in [City 1];
·the first named applicant’s family is from [City 1] and so because of his political activities, the first named applicant used to face intimidation and harassment from PA supporters;
·a famous SLFP stalwart [comes] from [City 1], and his son, [Mr E] is also a SLFP stalwart;
·from 2014, the UNP increased its political presence and the applicant enacted various programs in [City 1] that encouraged many former PA activists to instead support the UNP;
·many of those PA activists were [Mr E]’s supporters, and he was “infuriated” that the applicant and the UNP began to peel away that supporter base in [City 1];
·[Mr E] was known to have been engaged in financial fraud and used his position of power to extort others. The first named applicant learned this through his own political connections, and found such sensitive information to be politically important and useful;
·one of [Mr E]’s associates was [Mr F], a former police officer who was [Mr E]’s Chief Security Officer;
·the first named applicant began mobilising people against [Mr E] after exposing a major corruption issue where he allegedly [did something], and that as a result, [Mr E] “and his goons” developed great animosity towards the applicant, and that [Mr E] considers him his greatest enemy to date;
·the first named applicant’s business imports sophisticated [products], and [Mr E] believes the applicant was responsible for a secret recording made that alludes to the bribe;
·[Mr E] “developed a great hatred” towards the first named applicant after a considerable number of Provincial members of the PA who supported him switched their allegiance to [Mr B] of the UNP;
·[in] July 2014, [Mr F] and “his goons” assaulted the applicant at his residence in [Location]. The first named applicant lodged police complaints and made a complaint to [Official agency] of Sri Lanka;
·as a result of this, [Mr E] and [Mr F] have threatened the first named applicant, saying that they will kill the applicant and his family for what the first named applicant has done;
·the police refused to take action against [Mr F] for the assault, and [Mr F] threatened and pressured the first named applicant to withdraw his complaints. When he did not withdraw them, he was pressured by the Senior Superintendent of Police and the Assistant Superintendent of Police in [Town] to withdraw them, and was warned that if he failed to do so, he would be in serious trouble;
·the first named applicant became very scared for his safety and the safety of his young family, and they began to move constantly, yet he felt they were being followed. When he reported his concerns to the police, they refused to undertake any kind of inquiry;
·[Mr F] is also related to the first named applicant: [deleted];
·in 2010, many years prior to the incidents in 2014 and 2015, the first named applicant had taken a loan of [amount] rupees from [Mr F]. [Mr F] applied extreme amounts of interest to the loan, and after repaying a total of [amount] rupees, the first named applicant told [Mr F] he would not pay any more. [Mr F] advised the applicant to pay another [amount] rupees, but the first named applicant refused;
·on the day he was assaulted by [Mr F], [in] July 2014, he was working on his home with his family present. At around 10:30am, [Mr F] approached the first named applicant and was knocked to the ground after one punch. [Mr F] asked his son to continue the assault, while [Mr F] told the onlookers that he was from the police and no one should interfere, and that the applicant owed him [amount] rupees. The assault continued and the first, second and third named applicants, as well as the second named applicant’s grandmother, were caught up in the violent attacks. The first named applicant was thrown into a van and driven away, where he was assaulted further in front of a new crowd of onlookers;
·the second named applicant was able to contact the applicant’s mother, and they organised for police intervention, but that ultimately, [Mr F] made further death threats towards the applicant and his wife;
·[Mr F] failed to appear before the [Official agency]. Although the applicant was able to prove that [Mr F] was on duty on the day and at the time he assaulted the first named applicant, the [Official agency] failed to do anything;
·when the first named applicant’s police complaint was listed for hearing in the [Suburb 3] Court, he was summonsed to the [Town] police station whether the senior police Superintendent threatened them, advising them to withdraw the case against [Mr F] and to “keep in mind that we would be facing adversity in the future” if they persisted;
·[Mr F] kept threatening the first named applicant when he attempted to attend future listings of his application, and police would ask the first named applicant to attend different police stations if he wished to file a complaint, and that they would not help him. When the matter finally got up for hearing, the first and second named applicants were intimidated by phone and on the court premises. Death threats were made;
·when the first named applicant attended [City 2] Police Station, the officer in charge agreed to take his complaint, but when [Mr F]’s name was mentioned, the applicant was informed that the station could not take his complaint anymore because the people the first named applicant mentioned were powerful people, and the officer’s career would be affected;
·despite relocating several times, the applicants never felt safe in Sri Lanka. When the first named applicant spoke to [Mr B] about the harassment he was facing, he was told that because the current government was a minority government, the situation was unstable, and that he could not act against the [Mr E] family;
·he believes that [Mr E] is responsible for [Mr F] bringing the old debt issue back to the surface and believes [Mr E] has strong influence and control over [Mr F];
·[Mr B] advised the first named applicant to leave the country; and
·the first named applicant genuinely fears and knows for a fact that he cannot get adequate state protection in Sri Lanka because of the manner in which his previous attempts to make complaints have been dealt with.
Along with the statement of claims, the applicants provided a body of supporting evidence, including:
·copies of their birth certificates (with certified translations of the first 3 named applicants’ Sri Lankan birth certificates);
·copies of the first and second named applicants’ national identity cards from Sri Lanka;
·a copy of the business registration documents for the first named applicant’s business (with a certified English translation);
·a copy of the official log entries for Chief Police Inspector [Mr F] for [date] July 2014 demonstrating that he was both on duty and armed the day the applicants allege he attacked them;
·copies of procedural documents relating to the first named applicant’s claim in the [Official agency] of Sri Lanka including a copy of orders and a summons for [Mr F] to attend;
·evidence of complaints lodged at the Sri Lankan [Official agency] [in] July 2014, the Sri Lankan Police Headquarters [in] July 2014, the [Location] Police Station [in] July 2014, and the [City 2] Police Station [in] February 2016;
·copies of court documents from the [Court] of [Suburb 3], [case number] including certified translations to English;
·contemporary medical evidence regarding the first named applicant’s mental health since arriving in Australia;
·news articles about [Mr E]; and
·written submissions from the applicants’ migration lawyers.
The first named applicant participated in an interview with a Departmental officer on 24 June 2020. The interview was conducted by telephone due to the Covid-19 pandemic and the fact that the delegate was in Western Australia while the applicants were in Melbourne. The interview spanned almost 2.5 hours and the first named applicant was questioned in detail regarding the claims he made and the political situation in Sri Lanka. The Tribunal notes that the interview with the Department took place over 4 years before this application came before the Tribunal for hearing.
After the interview, the applicants provided further evidence to the Department, including a further written statement from the first named applicant, and a letter from [Mr B] dated 14 February 2016 confirmed that the first named applicant was a member of the UNP.
The delegate was not satisfied that the first named applicant was owed protection in Australia. The delegate was not satisfied that the first named applicant had the requisite level of knowledge regarding the UNP and its aims and policies in Sri Lanka, and the delegate did not find the first named applicant’s claims regarding persecution from SLFP members and [Mr E] credible. The delegate noted that Sri Lankan courts were notoriously slow, citing country information to support that proposition, and was therefore not satisfied that state-based protection was denied to the first named applicant for his claims against [Mr F]. The delegate found that the first named applicant had embellished or contrived claims that [Mr F] had influence over [Mr E].
Evidence before the Tribunal
There was minimal correspondence between the Tribunal and the applicants’ migration lawyer between August 2020 and July 2024. On 9 July 2024, a Tribunal officer reached out to the applicants to enquire as to their availability for a Tribunal hearing. On 2 September 2024, the Tribunal received pre-hearing submissions from the applicants’ migration lawyer. Those submissions state, in summary:
·the first named applicant is now a [member of] the Samagi Jana Balawegaya (SJB);
·the applicants fear they will face serious and significant harm in Sri Lanka including torture, degrading, inhuman and cruel treatment due to the first named applicant’s past confrontations with [Mr E] and [Mr F]; and
·contemporary country information, supplied along with the submission, supports the contention that the applicants will face serious and significant harm due to the first named applicant’s political affiliations and the current political climate in Sri Lanka.
The applicants provided a large body of supporting and corroborating evidence with the pre-hearing submission, including the following:
·a revised statement of claims from the first named applicant;
·copies (including certified translations) of police complaints, court documents, and a signed statement from [Mr A], the first named applicant’s Sri Lankan attorney;
·letters from [Mr G] and [Mr H], [Official position], SBJ with various dates from 2020 to 2024;
·links to [videos] of a Sri Lankan Australian who faced death threats from [Mr E] in the past;
·a copy of a news report regarding [Mr F]’s attack on the first named applicant, and a separate report regarding [Mr E]’s alleged involvement in bribery and corruption;
·evidence regarding the first named applicant’s involvement in the [SJB];
·a statutory declaration made by the first named applicant on 9 May 2021 stating that he did not make international money transfers to Sri Lanka in 2019 as suggested to him by the Department officer during his interview on 24 June 2020;
·copies of news articles regarding the appointment of [Mr E]’s [relative] as [Official position] of the Sri Lankan Mission in Australia;
·reports from cardiologists and psychologists regarding the first named applicant’s general health; and
·a copy of the business registration document for the first named applicant’s business in Sri Lanka.

At the hearing, the first named applicant spoke at length regarding his fears for his life if he was required to return to Sri Lanka now or in the reasonably foreseeable future. He explained that he was [one of] of 3 children in his family, that his father passed away, and that his mother spends most of her time living in [Country] with his [sister] and her family. His [brother] is an Australian citizen who lives in [Suburb 1] with his wife and [children] (aged [Ages]). When the applicants first came to Australia, they lived with the first named applicant’s brother in South Australia for around 2 months before deciding to move to Melbourne. The first named applicant said that his brother’s family decided to come to Melbourne after that.
The first named applicant told the Tribunal that he married the second named applicant in 2010 and that they have a [Age] year old son and a [Age] year old daughter. Their daughter was born in Australia and has not yet applied for Sri Lankan citizenship. He explained that his own family has left Sri Lanka now, but that they maintain daily contact with his wife’s family who have continued to live in Sri Lanka.
The decision to seek protection in Australia was made after the applicants exhausted avenues to obtain sponsored work visas in Australia. The first named applicant stated that he had applied for a Subclass 457 visa in the past, and that when he had come to visit his brother to begin to scope out options for sponsorship, he had given his brother all the necessary documents to make an application, and that his brother had spoken to a migration agent on his behalf. While in Australia, the first named applicant has worked as [an occupation 1]. He is a qualified [related occupation]. He now runs his own business, [Business name].
The first named applicant told the Tribunal that he decided to leave Sri Lanka because of the trouble and problems he faced due to his political affiliations. He explained that he had originally been a strong supporter of the UNP, but that in February 2020, a large liberal arm of the UNP had broken away from the UNP to form the SJB, and he followed that movement. He said that around 72 members of the Sri Lankan parliament who represented the UNP now represented SJB – around 50% of the UNP’s parliamentary party room. He is currently the [Official position] of the Melbourne branch of the SJB. [Deleted].
The SJB is now one of two predominant political parties in Sri Lanka. The other is the Janatha Vimukthi Peramuna (JVP), the dominant party in the coalition known as National People’s Power, or NPP. The NPP coalition is also known by the name Jathika Jana Balawegaya or JJB.[1] The first named applicant explained that at the recent Presidential election, held in late September 2024, the JVP candidate had won the popular vote, with SJB’s candidate finishing second. SJB is the dominant party in a coalition known as the United People’s Power Party, or UPP. The first named applicant expressed great concern regarding NPP’s success in the Presidential election, stating that the organisation was controlled by a membership base with strong Marxist ideology, being diametrically opposed to SJB’s liberal philosophies.
[1] National People's Power | NPP - Official Website accessed at 29 November 2024.
The first named applicant explained that after his victory, the new President had dissolved Sri Lanka’s parliament and called general elections for 14 November 2024. He does not believe that Sri Lankan citizens living overseas are eligible to vote. However, he was the first person to open a foreign branch of SJB, and he has helped to open a branch in Sydney. The Melbourne branch now has 56 members, and SJB’s work in Australia is generally focused on fundraising to support the party in Sri Lanka, and to engage in social work.
The first named applicant said he is very concerned about the situation in Sri Lanka now, because the new President is more strict and more tough than before. He said that when the President’s party was last in power, around 1988-1989, personal vendetta killings were a semi-regular occurrence. He is concerned because all of his personal details are known, and he believes that the NPP will try to cause him trouble if he returns to Sri Lanka. However, he says he is content with being a member of the SJB in Melbourne because the rule of law in Australia means that it would not be possible for his detractors to harm him here.
In respect of his own situation, where he was involved in claims against [Mr E] and [Mr F], the first named applicant explained that he believed there was no recourse from the authorities, because they would not accept a complaint made to them. He said that files go missing or are misplaced from the highest courts of law as well as the [Official agency], but that it is his belief that documents like that could not just go missing from such important institutions. He explained that charges under certain sections of the Penal Code were removed from the charge sheet against [Mr F], despite the applicants providing their claims via registered post.
The first named applicant explained that his complaint to the [Official agency] in Sri Lanka remains unresolved. He said he had a recent scare when his lawyer mistakenly revealed his Australian address in documents sent to the [Official agency] following up on the status of his complaint. He explained that as a result of his address being disclosed, he had experienced a spike in his blood pressure and became unable to sleep, and that he had to seek intervention and treatment from his doctor.
He said that he did not believe the family could live safely anywhere in Sri Lanka because it is a small island, and when he had tried to move the family around the country in the past, he was still followed. He says he was stalked and followed by people on motorcycles for so long in Sri Lanka that he continues to feel frightened when he sees motorcycles on the streets in Melbourne.
During the hearing, the Tribunal also received oral evidence from the first named applicant’s Sri Lankan attorney, [Mr A], who appeared by telephone to provide updates and context regarding the various court and [Official agency] matter still outstanding in Sri Lanka. In summary, [Mr A] stated:
·he was introduced to the first named applicant by his wife, who is a partner in his law firm;
·he holds power of attorney for the first named applicant and continues to act on his behalf in Sri Lanka;
·he took on these cases because of the seriousness of the alleged offending against the first named applicant by [Mr F], and noted that in Sri Lanka, a matter against a police officer is very difficult to prove because not many lawyers will assist a complainant in that situation;
·he took on the first named applicant’s case in 2016, and noted that the police had brought charges against [Mr F], but when they formally filed the charge sheet, it was amended to minor charges;
·[Mr A] believes the main charge should have been brought under s 355 of the Penal Code, and that the penalty for that offence is 20 years in jail, bail is not available, and the sentence would not be compoundable;
·the charge was reduced to the lesser charge of abduction under s 353 of the Penal Code, where the penalty is 7 years’ imprisonment or a fine of up to 10 Lakhs;
·the charge brought under s 347 of the Penal Code was intentionally removed from the charge sheet, and [Mr F] claims that the first named applicant stole his van;
·no charges were brought against [Mr F] for the assault on the second named applicant;
·a [video] recently circulated showing [Mr F] threatening a presidential candidate, and [Mr A] tried to follow this up with the [Official agency], but was left waiting for hours while staff searched for the file, and advised [Mr A] that they would contact him in a week to update him.
The applicants’ migration lawyer also offered submissions at the end of the hearing. He explained that since 1948, the UNP has largely controlled the government and ensured a degree of democracy in Sri Lanka. He said that the new president comes from the JVP and he explained that JVP has Marxist and Leninist policies, and believes that the only way to change the structure in Sri Lanka is by armed revolution.
The applicants’ lawyer explained that in 1987, there had been an uprising by the JVP’s predecessor that targeted people affiliated with the UNP and that the vendetta killings referenced by the first named applicant in his oral evidence were committed against known UNP operatives. The 1987 uprising failed, and so they sought to enter mainstream politics as an alternative and that is how the JVP came to exist. While they had limited success winning seats in parliament, they persisted with their aims. However, the JVP did split internally in 2012, and the more radical arm spun off. The leader of that arm of the JVP has recently given an interview suggesting they will have an uprising against the newly elected government.
The applicants’ lawyer submitted that [Mr E] was a powerful and influential political leader, and that [Mr F] was both a relative of the first named applicant and the chief of security for [Mr E], meaning the first named applicant was especially susceptible to further harm being inflicted by [Mr F].
After the hearing, the applicants were afforded a final opportunity to present evidence regarding the current political landscape in Sri Lanka, including the role of [Mr E] in the government, noting that Presidential elections had been held between the time of their September 2024 submissions and the hearing held on 11 October 2024.
The Tribunal has considered all of this evidence when making its findings.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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.
‘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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
However, torture 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 ICCPR.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. This includes DFAT’s most recent country information report published on 2 May 2024.
REASONS AND FINDINGS
Receiving country
The first, second and third named applicants’ Sri Lankan nationality is not in issue. They have provided copies of their Sri Lankan passports and Sri Lankan identity cards to the Department. The delegate set out extensive reasoning finding that the applicants were who they claimed to be, because inconsistencies in naming conventions in Sri Lanka were noted. The Tribunal has considered all of the evidence and the delegate’s summary of the first, second and third named applicants’ identities, and accepts their claimed identities and nationality set out in their passports. The Tribunal finds that Sri Lanka is the first, second, and third named applicants’ receiving country for the purposes of assessing his protection claims.
There is no evidence before the Tribunal to suggest that the fourth named has claimed Sri Lankan citizenship. She was born in Melbourne and has never left Australia. However, given both her parents are Sri Lankan citizens, it is reasonable for the Tribunal to rely on Sri Lanka being her receiving country for the purposes of assessing her claims for protection, as it is a country where she is entitled to claim citizenship. The first and second named applicants do not contest that Sri Lanka should be considered the receiving country for their daughter’s application. Therefore, the Tribunal finds that Sri Lanka is the receiving country for the purposes of assessing the fourth named applicant’s protection claims.
Findings on claims regarding the first named applicant’s political opinion
On a comprehensive review of all the materials available to it, the Tribunal finds that the first named applicant has given a consistent account of the previous harm he claims to have suffered in Sri Lanka owing to his political opinion. He has done this through his written statements, his interview with the Department, and the hearing before the Tribunal. The Tribunal is satisfied that the claims presented at review have not deviated far from the first named applicant’s original position. The political climate in Sri Lanka has changed several times while the applicants have been living in Australia, and this is clearly beyond the applicants’ control.
The Tribunal has considered the letters provided by [Mr B], [Mr G] and [Mr H], as well as the first named applicant’s statutory declarations and oral evidence given at the hearing, and it is satisfied that the first named applicant has established that he was a member of the UNP and that he is a current member of the SJB, as well as being [Official position] of the SJB’s Melbourne branch. The Tribunal is satisfied that his decision to join the SJB while living in Melbourne was motivated only by his political beliefs and values.
Having reviewed all the medical evidence, court documents, police reports, [Official agency] application, applicant statements and oral evidence available in respect of the alleged attack on the first named applicant by [Mr F] [in] July 2014, the Tribunal is satisfied that the first named applicant was personally targeted by [Mr F] and his son on that date.
The Tribunal has reviewed the evidence presented and is satisfied that the first named applicant was involved in uncovering and exploiting corruption by [Mr E] for political gain for the UNP in 2014, and the Tribunal observes the unlikely corollary of [Mr E]’s chief of security suddenly becoming concerned in 2014 over allegedly unpaid interest owed on a loan to the first named applicant that was last addressed between [Mr F] and the first named applicant in 2010.
Publicly available information confirms that the Presidential election in Sri Lanka, held on 21 September 2024, was won by Anura Kumara Dissanayake of the JVP.[2] The Tribunal notes that since the hearing, general elections in Sri Lanka were held on 14 November 2024. Global media coverage indicates that, for the first time, the NPP has won a significant majority of seats in the Sri Lankan Parliament.[3] The Tribunal notes that publicly available information confirms that JVP is the dominant party in the NPP.
[2] See, e.g., Live Sri Lanka Presidential Election Results 2024 | Real-Time Results accessed on 4 December 2024.
[3] See, e.g., Live Sri Lanka Parliamentary Election Results 2024 | Real-Time Results accessed on 4 December 2024.
The Tribunal accepts the first named applicant’s written declaration regarding his transfers of money from Australia to Sri Lanka. The Tribunal also accepts that the first named applicant has continued to be politically active throughout the time he has lived in Australia, and that he has taken an active role in fundraising for the SJB and its causes.
Does the first named applicant satisfy the refugee criterion for protection?
The next question for the Tribunal to address is whether there is a real chance of harm to the first named applicant if he was returned to his home area of Sri Lanka, [City 1], in the reasonably foreseeable future. As outlined in detail above, the first named applicant has experienced harm in Sri Lanka in the past due to his political opinion and his actions as a member of the UNP in [City 1].
The Tribunal accepts that the first named applicant has been subjected to violent assaults by [Mr F] as claimed. Given the first named applicant’s evidence regarding the police investigations (or lack thereof) into the assaults committed by a high ranking police officer, the Tribunal is satisfied that there is a real chance that the first named applicant would be subjected to further violence if he was returned to Sri Lanka in the reasonably foreseeable future. As the first named applicant has demonstrated, his prior history of attempting to avoid detection from [Mr F] and his associates by frequently locating his family around the properties he owns in Sri Lanka, and even hiding with relatives where he believed they could not be detected, has been wholly unsuccessful.
The Tribunal is satisfied that the harm the first named applicant fears is serious harm as set out in s 5J(5) of the Act. He has been violently assaulted, publicly humiliated, abducted, and has required hospital treatment for his injuries. He has also been subjected to systemic threats of further harm, extending to repeated death threats unless he withdraws his complaints against [Mr F]. The Tribunal is satisfied that the first named applicant continues to fear the same types of harm if he is returned to Sri Lanka. As evidenced, he has had significant psychological and cardiac issues while in Australia and he continues to experience trauma when he sees or hears motorcycles approaching him.
The question as to whether the harm that the first named applicant fears is a well-founded fear is more complex. In this case, the origins of the first named applicant’s altercations with [Mr F], allegedly on behalf of [Mr E], stem from his work with the UNP in [City 1]. The first named applicant has admitted that he capitalised on the corruption claims against [Mr E] for political gain, and the Tribunal is satisfied that, based on the evidence presented, it is reasonable to infer that [Mr F]’s attack on the first named applicant was motivated by retaliation for the political damage that the first named applicant was able to inflict on [Mr E] and his supporter base in [City 1], and not an unpaid debt from 4 years ealier.
However, the core reasons for which the applicants made the decision to flee Sri Lanka relate to their fears of harm, including death, stem from the first named applicant’s resolve to seek justice against [Mr F] for the violent assault [in] July 2014 and the lack of action by the authorities to resolve the first named applicant’s complaints. The first named applicant fears retaliation from [Mr F] or his associates because of his persistence seeking to bring [Mr F] to account for his actions.
The Tribunal has considered DFAT’s latest country information report for Sri Lanka and notes the following relevant extracts pertaining to claims for protection stemming from an applicant’s political opinion:
[3.53] The [Sri Lankan] constitution provides for free and equal elections by secret ballot based on universal suffrage. The voting age is 18. Sri Lanka has held regular democratic elections since independence. Elections have generally been considered free and fair, including recent presidential and parliamentary elections. There are no legal restrictions preventing ethnic minorities from participating in the political process; parties representing minority interests are active and former Tamil militants serve as MPs. The constitution prohibits political parties from promoting secession.
[3.54] Sri Lanka has a robust and diverse political landscape. At the time of publication, 84 political parties were registered with the Election Commission, representing a broad range of ethnic, religious and ideological interests. Of these, 15 were represented in the current parliament, five of which represented the Tamil community (for a total of 16 seats) and three represented the Muslim community (total of three seats). There were two Tamils and one Muslim in the Wickremesinghe Ministry at the time of publication. Political parties, irrespective of their affiliations or ideology, can operate freely and contest elections, and can generally do so without the risk of harassment or violence. Registered political parties are governed by the same legal framework. DFAT is not aware of Sinhalese, Tamil, Muslim or other parties facing differences in treatment.
…
[3.58]…The Samagi Jana Balawegaya (SJB, or United People’s Power) is the largest opposition party, with 54 seats (its leader, Sajith Premadasa, formally leads the opposition in parliament). Ilankai Tamil Arasu Kachchi (ITAK) is the third largest party in parliament, with six seats, followed by Jathika Jana Balawegaya (also known as National People’s Power, NPP) with three seats. The NPP, a coalition of socialist parties founded in 2015 and led by Anura Kumara Dissanayake of Janatha Vimukthi Peramuna (JVP, or People’s Liberation Front), was projected to make significant gains at local elections in March 2023 (since postponed). The JVP, in its previous guise as a Marxist militant organisation, waged an armed insurrection in southern Sri Lanka in the 1970s and 1980s.[4]
[4] DFAT Country Information Report, Sri Lanka, 2 May 2024.
The Tribunal notes that the political landscape has shifted markedly since DFAT’s report was released in May, and refers to its findings above regarding JVP’s success at the recent Presidential and parliamentary elections. The Tribunal has considered DFAT’s assessment that:
[3.64] In-country sources reported that people affiliated with established political parties faced a low risk of official or societal harassment. Politicians are well-connected and can better access state protection than the average person, and may also have the means for private protection services.
[3.65] No laws or policies discriminate on the basis of political opinion, and DFAT did not find evidence of systemic political discrimination against any particular group. DFAT assesses that political parties, including opposition parties, are able to operate freely and contest elections. Notwithstanding the targeted attacks against politicians associated with the ruling party in May 2022, DFAT assesses that both high and low ranking politicians and members of political parties face a low risk of violence. DFAT assesses that Tamil parties that espouse more radical views than moderate parties are more likely to have their activities monitored, although can generally operate freely. (emphasis added)[5]
[5] Ibid.
Further, although the first named applicant has not claimed that to have been a political candidate or elected politician in the past, DFAT’s report notes that violence against politicians is not common[6]. As discussed with the applicants during the hearing, it is difficult for the Tribunal to be persuaded that the harm the first named applicant fears in Sri Lanka is for the essential and significant reason of his political opinion. In the Tribunal’s view, the essential and significant reason for the first named applicant’s fear stems to the isolated and specific disputes between himself and [Mr F].
[6] DFAT Country Information Report, Sri Lanka, 2 May 2024 at [3.55].
Therefore, the Tribunal is not satisfied that the first named applicant has a well-founded fear of persecution in Sri Lanka for the essential and significant reason of his political opinion. It follows that he cannot meet the requirement in s 36(2)(a) of the Migration Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
As outlined above, the applicants have provided a significant body of evidence to demonstrate that there is a real risk of harm to the first named applicant in the reasonably foreseeable future. He has filed complaints in the [Court] and the [Official agency] of Sri Lanka regarding the violent assault occasioned against him by [Mr F], and even though more than 10 years have passed since the assault took place, the matters remain unresolved before both jurisdictions.
The first named applicant’s Sri Lankan attorney provided detailed and compelling evidence to the Tribunal regarding the ongoing reticence of the Sri Lankan authorities to deal with the first named applicant’s complaints against [Mr F]. The applicants have provided evidence regarding [Mr F]’s associates continuing to make death threats against the first and second named applicants while the legal actions against [Mr F] continue to be pursued.
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. The first named applicant states that he believes there is a real risk that he will be killed if he returns to Sri Lanka, or at the very least, he will be beaten and publicly humiliated like he was [in] July 2014. While the Tribunal notes that no further attacks occurred in the 18 months between the attack and the family leaving Sri Lanka, the Tribunal also recognises that the applicants went to considerable lengths attempting to avoid detection by [Mr F] and his associates. It is clear that the one constant in the applicants’ lives is that, if they were ever forced into a setting with the authorities in that period (such as being called for a court appearance or attending a police station to enquire about the progress of his complaints), death threats would eventuate.
The evidence presented to the Tribunal makes plain that even after repeated attempts by the applicants to relocate within Sri Lanka, they were always found by [Mr F]’s associates. The first named applicant was followed and intimidated on a frequent basis. When the applicants were required to attend court, they would receive verbal death threats. When they sought assistance from the police, they were advised either that the officers could not help for fear of their own careers, or the officers provided stern warnings regarding the first named applicant’s ongoing safety if he continued to pursue his claims against [Mr F].
It is clear that the Sri Lankan police will not prioritise the first named applicant’s safety when his accused is one of the highest ranking police officers in Sri Lanka. The Tribunal does not need to rehearse again the applicants’ evidence set out above. Given all that evidence, the Tribunal is satisfied that the first named applicant does not have access to protection from authorities that may reduce the risk of the harm threatened by [Mr F] from eventuating. Further, the Tribunal is satisfied that the qualification in s 36(2B)(c) does not arise because the real risk faced by the first named applicant is specific to him and is not a risk that is faced by the population generally. The continued threats against his life are individual and targeted.
Given the history of violent confrontation between the first named applicant and [Mr F], and the fact that [Mr F] has demonstrated his intent to kill the first named applicant, the Tribunal is satisfied that in the first named applicant’s particular circumstances, there is a real risk that he would suffer significant harm if he returned to Sri Lanka.
Therefore, based on the evidence presented to the Tribunal at review, the Tribunal is satisfied that the first named applicant satisfies s.36(2)(aa) of the Act.
Protection Obligations
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

This means that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
There is no evidence before the Tribunal to suggest that any of the applicants has or would have a right to enter and reside in a third country. Therefore, the Tribunal is satisfied that s 36(3) is not relevant to its current consideration.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, they have established that they are member of the same family unit as the first named applicant, evidenced via certified copies and certified English translations of their marriage certificate and birth certificates. The Tribunal is satisfied the first named applicant’s wife and children are members of the same family unit as the first named applicant for the purposes of s 36(2)(c)(i). As such, the fate of their applications depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·the first named applicant meets s 36(2)(aa) of the Migration Act; and
·that the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date(s) of hearing:  9 October 2024
Representative for the Applicant:           Mr Mahalingam Sutharshan (MARN: 0961664)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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