2018328 (Refugee) v Minister for Immigration and Multicultural Affairs - [2024] ARTA 867

2018328 (REFUGEE) [2024] ARTA 867 (12 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2018328
Tribunal:General Member G Fitzgerald SC
Date:12 December 2024

Place:Melbourne
Decision:The Tribunal affirms the decisions under review.

Statement made on 12 December 2024 at 3:35pm
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – race – Dutch burgher descent – religion – Roman Catholics – had not suffered any harm or mistreatment in the past – elderly – mental health conditions – length of time in Australia – strong and clearly close family bond in Australia – imputed political opinion – referral to the Minister – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 351, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Sri Lanka. They are a married couple. They applied for the visas on 7 October 2016. The delegate refused to grant the visas on 1 December 2020. The delegate refused to do so because he was not satisfied that the applicants had a well-founded fear of persecution in the foreseeable future as a result of their Christian faith and ethnicity if they returned to Sri Lanka, or that there was a real risk they will suffer significant harm if they return.
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.
The applicants appeared before the Tribunal on 19 September 2024 to give evidence and present arguments. The first applicant, the husband, makes protection claims based on his religion and ethnicity. The second applicant, the wife, does not make any separate or independent protection claims but rather relies on her husband’s claims. The Tribunal also received oral evidence from the daughter and son-in-law of the applicants.
The applicants were represented in relation to the review. Their representative attended the hearing.
After the hearing, on 11 October 2024, the applicants by their representative provided further documents in support of their application which are referred to below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed but refers the case to the Department for possible consideration by the Minister pursuant to s 351 of the Act.[1]
[1]Formerly, s 417 of the Act.
CRITERIA FOR A 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.
Refugee
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). 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.
Complementary protection
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 Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Immigration and Multicultural Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The latest DFAT country information assessment is the DFAT Country Information Report Sri Lanka dated 2 May 2024 (the DFAT report).
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether:
a.there is a real chance that, if the applicants return to Sri Lanka, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,
b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants also requested that the Tribunal refer the case to the Minister for possible consideration. The Tribunal has decided to do so. This will be discussed further below.
Nationality, country of reference and receiving country
The applicants’ nationality is not in issue. The Department was satisfied as to the identity documents which were produced. The Tribunal accepts that the applicants are Sri Lankan nationals. Accordingly, Sri Lanka is the country of reference and receiving country for their application for a protection visa.
The applicant’s immigration and travel background
The details set out below are summarised from the table on page 2 of the Departmental decision. [2] The first applicant was taken to this table at the hearing and he confirmed that it was correct.
[2]The applicants’ protection visa decision record made by the Department dated 1 December 2020 (the Department decision).
The applicants first arrived in Australia on [date] December 2000 and then regularly travelled on temporary tourist or other visas to visit their daughter and her family in Australia until November 2011.
They last arrived in Australia in [date] September 2012 on tourist visas (TR-676) and have remained here since then.
They were in Australia until June 2013 on the tourist visas but then applied unsuccessfully for Aged Parent (Residence) (BP-804) visas on 25 July 2013. The Department refused this application on 25 March 2015.
The refusal of their applications for these visas was affirmed by the predecessor to the Tribunal on 12 May 2016, because they did not meet the ‘balance of family’ test.
The Tribunal also declined their request to refer that application for Ministerial Intervention, but they applied directly to the Minister on 7 July 2016 under s 351 of the Act. The decision was made not to refer the matter to the Minister.
They applied for the protection visas currently under review on 7 October 2016.
The applicant’s personal background
This background is based on the applications for a protection visa to the Department lodged by the applicants on 7 October 2016 (the Departmental application) [3] and the applicants’ evidence at the hearing.
[3]Their applications for a protection visa to the Department lodged on 7 October 2016 (the Departmental application).
The first applicant is in [age], while the second applicant is [age] years old.
The first applicant was born in Sri Lanka and lived mainly in Colombo until he left that country for Australia in 2012. He is now retired but he was until 2012 a senior executive with a Sri Lankan business [group]. He is of Dutch burgher (not Portuguese burgher) descent as to his ethnicity and follows the Roman Catholic faith.
The second applicant has never worked. She has been a housewife and partner to the first applicant. She is also of Dutch burgher ethnicity and follows the Roman Catholic faith.
The applicants married in Sri Lanka in December 1996. This was the first applicant’s second marriage. The first applicant has four adult children, with two from his first wife and two from his second wife, the second applicant.
At the time of the hearing, the first applicant’s two older children were living outside Sri Lanka. One was living in [a country] and the other spent most of her time in [a country]. He has lost contact with these children, for about 30 years.
Of the two younger children, the daughter of the applicants lives in Australia with her husband and son. She is an Australian citizen. She has lived here since 1996. She attended the hearing and gave evidence in support of the applicants. Her husband did the same.
The applicants’ other younger child, a son, is still living in Sri Lanka but he is in the process of moving to [Country 1]. This son has married a [Country 1] national and his children live in [Country 1] with their mother. In 1996, during the Tamil Tigers’ civil war, a bomb badly injured this son. He lost an eye. When this son leaves Sri Lanka, the applicants will not have any remaining close family in that country.
Until his retirement, the first applicant worked for a [company]. At the end of his working life with the company, he was a [senior executive] for the company. The bomb that injured his son exploded near his company’s building.
They no longer own any property or operate any businesses in Sri Lanka.
The applicant practised their Catholic faith in Sri Lanka by regularly attending a local church for Sunday [services] [4] They were observant Catholics but they were not involved in evangelising or proselytising their faith.
[4]The daughter thought that their local church in Colombo might have been attacked during the Easter Sunday 2019 bombings, referred to later, but according to country information it was not. St Anthony’s was the only church attacked in Colombo: CNN, ‘Terror in Sri Lanka’, accessed on 9 December 2024 at edition.cnn.com/interactive/2019/04/world/sri-lanka-attacks/.
The applicants were not involved in politics while they were in Sri Lanka.
In Australia, they has lived with their daughter and son-in-law in suburban Melbourne since 2012. They still attend a local Catholic Church most [Sundays]. They had not been involved in politics in Australia.
The first applicant has had some health issues such as with his heart. He has memory problems sometimes. No medical documents have been produced to the Tribunal for either applicant.
THE APPLICANTS’ CLAIMS FOR PROTECTION
As noted above, the first applicant makes protection claims based on his religion and ethnicity. The second applicant does not make separate or independent protection claims but rather relies on her husband’s claims. For convenience, nonetheless, the Tribunal will refer at times to the claims of the applicants.
Claims to the Department
In the Departmental application, the first applicant claimed that he and his wife left Sri Lanka as they felt ‘very insecure and … concerned about the continuing ethnic and religious response for the majority Sinhalese Buddhist who refer to us Burghers as descendants of European origin who are responsible for the plight that Sri Lanka is now in [which] has led to a very dangerous and serious situation where being a Christian (Roman Catholic) we find that our places of worship attacked, destroyed, clergy and congregation assaulted’. [5] He then referred to the severe psychological effect this was having on him and his wife, particularly having lived through various civil, racial and religious conflicts in the country. [6]
[5]The first applicant’s Departmental application, Part C, page 20 (question 89). Reproduced as written, but not in capitals.
[6]The first applicant’s Departmental application, Part C, page 20 (questions 89 and 90). No psychiatric or psychological medical documents have been produced to the Tribunal for either applicant.
The first applicant also provided a two page statement dated 6 October 2016 with his Departmental application, setting out his background and claims in further detail (the statement) and supporting articles. [7]
[7]At the hearing, the daughter referred to a further statement made and supplied to the Department after the Easter Sunday bombings in 2019. This further statement did not appear to be on the Departmental file provided to the Tribunal. The Tribunal has not seen it. The Tribunal asked the applicants at the hearing to forward a copy of this further statement. This was not provided.
The first applicant did not claim to have experienced any harm in Sri Lanka in the past [8] but feared being ‘victimized and preyed upon’ if he returned to Sri Lanka, as he would have no family left in Sri Lanka. He and his wife ‘will be left alone to fend for ourselves and in these twilight years I don’t see ourselves being able to survive in that country’. [9]
[8]The first applicant’s Departmental application, Part C, page 21 (question 91).
[9]The first applicant’s Departmental application, Part C, page 22 (question 94); statement, page 2. Reproduced as written.
The first applicant was interviewed by the Department about his protection claims on 26 May 2020, as referred to in the Department decision.
In her Departmental application, the second applicant left blank the section on her reasons for claiming protection. [10]
[10]The second applicant’s Departmental application, Part C, pages 20 to 22.
The claimed reasons for protection in the Departmental application focussed on their ethnicity as Sri Lankan Dutch Burghers and their religion as Roman Catholics. At the time they applied, there had been disturbances against Christians and unrest relating to religion in Sri Lanka. In substance, they sought protection because of the risk of religious persecution made worse by their advanced age and ethnicity.
Claims before the hearing
The applicants did not been update or elaborate upon their claims or provide any further information about them to the Tribunal before the hearing. The last material in support of their application had been lodged for the Departmental application.
Claims at the hearing
At the outset of the hearing, the representative sought to explain to the Tribunal that the applicants conceded that they were not refugees, as conditions for Christians in Sri Lanka had ameliorated since 2016 and even after the 2019 Easter bombings (referred to below). The representative said that this was the case principally about a request for ministerial intervention. The Tribunal explained that despite the concession, absent withdrawal of the protection applications, it was bound to consider whether on the material the applicants met the requirements for a protection visa.
The Tribunal also noted that it would need updated information about the applicants or their claims and any other relevant country information[11] to better assess whether they now meet the requirements for protection visa, based on the conditions presently existing in Sri Lanka or in the reasonably foreseeable future.
[11]Apart from the DFAT Country Information Report Sri Lanka dated 2 May 2024 (DFAT report).
Both in the Departmental application[12] and orally at the hearing, the applicants confirmed that they had not suffered any harm or mistreatment in the past in Sri Lanka because of their religion or ethnicity.
[12]See the response to question 91 in the first applicant’s Departmental application.
The applicants were asked if they feared any harm or mistreatment in the foreseeable future for these reasons if they returned to Sri Lanka. They said they were not afraid now of harm because of their religion but they were afraid of harm because they had been out of the country for so long. They were afraid of the worsening political situation in Sri Lanka and how everything was in turmoil and unsettled, which could lead to civil strife and mayhem. Given their age and vulnerability and in the light of the lack of any family support should they return, they were fearful and apprehensive of any future in that country.
Material after the hearing
The absence of updated information about the applicants, the claims and any other relevant country information was raised with the applicant’s representative at the hearing, as mentioned above. He was given an opportunity to file any submissions, statements or supporting documents with the Tribunal by 11 October 2024. The representative filed on 11 October 2024 the following additional material (the additional material):
a.submissions dated 11 October 2024 (the Submissions);
b.bundle of supporting articles and reports marked as ‘G1 – incidents of threat faced by Christians’ (the supporting articles);
c.undated letter of support of the applicants’ daughter marked ‘G2’ (the daughter’s letter); and
d.undated letter of support of the applicants’ grandson marked ‘G3’ (the grandson’s letter).
The additional material will be further discussed below.
Other claims
The Tribunal’s own review of the material before it does not suggest or disclose any other claim open to the applicants which clearly emerges from or on the material before it.
Credibility of the applicants
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[13] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[14]
[13]Section 5AAA of the Act.
[14]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.

The Tribunal found the applicants to be credible and reliable witnesses, although anxious about their possible fate if they return to Sri Lanka. The applicants made appropriate concessions. They were candid that they did not fear returning to Sri Lanka now because of their religion.
The applicants’ daughter and son-in-law were also credible and reliable witnesses. They came across as genuine and committed in their desire for the applicants to remain in Australia with them and not risk returning to Sri Lanka at an advanced age.
This is not a case which turns on the credibility of the applicants and their witnesses, but rather on an objective assessment, based on the material, of the real chance of their suffering serious or significant harm in the foreseeable future if they return to Sri Lanka.
Findings on the protection claims
Based on its assessment of their credibility, the Tribunal accepts the applicants’ background set out above.
The Tribunal relevantly accepts and finds that:
a.the applicants are observant Christians (Roman Catholics) and have practised this religion all their lives, in Sri Lanka and in Australia;
b.the applicants are ethnically Sri Lankan Dutch Burghers;
c.the applicants are elderly;
d.the applicants lived in Sri Lanka until 2012 and have lived in Australia since then with their daughter’s family;
e.the applicants did not suffer any harm in the past in Sri Lanka on account of their religion or ethnicity;
f.the applicants’ son is in the process of moving from Sri Lanka to [Country 1], whereupon they will not have any family in Sri Lanka; and
g.the applicants do not fear any harm in the foreseeable future if they return to Sri Lanka because of their religion or their ethnicity;
h.however, the applicants are genuinely anxious and fearful about returning to Sri Lanka because of what they perceive as the worsening overall situation in Sri Lanka, given their age and attendant vulnerabilities and in the light of the lack of any potential family support should they return.
ASSESSMENT OF CLAIMS AND REASONS FOR THE TRIBUNAL’S DECISION
Comment on protection claims generally
The Tribunal has considerable sympathy and compassion for the applicants in their present circumstances: their advanced age, having spent the last 12 years in Australia with their family, having strong connections in Australia, having little or no connection now with Sri Lanka, anxious about returning to that country. Notwithstanding this, it must decide this application based on the material before it and the criteria for the grant of a protection visa.
Assessment of refugee criterion
The relevant refugee criterion is that the applicants will be refugees and have a well-founded fear of persecution under s 5J(1) if the Tribunal is satisfied that:
a.the applicants fear being persecuted for at least one of the reasons set out in s 5J(1)(a) (race, religion, nationality, membership of a particular social group (PSG) or political opinion) (the refugee nexus); and
b.there is a real chance they would be persecuted for that reason in the foreseeable future if they return to Sri Lanka: s 5J(1)(b).
Principles
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), 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) and (c).
The persecution must involve ‘serious harm’ to the person: s 5J(4)(b). 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.
The criterion in s 5J(1)(a) also contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Assessment of claims
Based on its findings above, the applicants do not presently have a genuine subjective fear of persecution for reasons of religion or ethnicity in the foreseeable future if they return to Sri Lanka. This, on its own, is sufficient to determine that they are not refugees, based on their claims, within the meaning of the Act.
However, the Tribunal will consider further whether there could be a refugee nexus and whether the objective standard of persecution would be met.
The Tribunal accepts that the religious/ethnic claim could have a refugee nexus: namely, being persecuted for reasons of race (Dutch Burgher ethnicity), religion (Christian/Roman Catholic), or because they are members of a particular social group (Dutch Burgher ethnicity). One or more of these reasons must be the essential and significant reason for the putative harm: s.5J(4)(a) of the Act.
The issue in this case then becomes whether the objective standard of persecution will be met for one of these reasons.
Country information
The applicants and the representative were referred at the hearing to relevant information contained in the DFAT report on their ethnicity and Christians.
Ethnicity
The appellation ‘Burgher’ came to be used in Sri Lanka for those of European origin when the Dutch East India Company established itself in Ceylon (as it was known in the 17th and 18th Century). These people and their descendants came to be designated as ‘Burghers’. [15]
[15]Burgher Association (Australia) website, accessed on 10 December 2024 at burgherassocn.org.au/about/.
The demographic information as to Burghers shows that they are now a tiny proportion of the population: DFAT report, [2.5-2.6]. By 2012, ‘the Burghers [had] become a rather miniscule minority, indeed an insignificant community both politically and socially, numbering about 15,000 to 30,000 persons’. [16]
[16]Burgher Association (Australia) website, accessed on 10 December 2024 at burgherassocn.org.au/about/. ‘The majority of Burghers now live outside Sri Lanka, having migrated to western countries, particularly Australia, New Zealand, the United Kingdom and Canada. Burghers who have emigrated to largely Western countries include Professor David de Kretser, former Governor of Victoria …’.
There is no information in the DFAT report about any persecution or discrimination against Burghers: they are simply mentioned in the demography section.
Christians (Roman Catholics)
The information on Christians is contained in paragraphs 3.40 to 3.47 of the DFAT report. This shows that there have been violent incidents, property damage, threats, hate speech, discrimination and other incidents and disruptions against Christians, in the last several years; mainly by Buddhists but also by Muslims (as shown by the Easter Sunday 2019 bombings).
The DFAT report explains that on 21 April 2019 (Easter Sunday), local Muslim extremists carried out coordinated terrorist attacks against Christian churches and hotels in the Western (Colombo, Negombo) and Eastern (Batticaloa) provinces, killing 272 people. These were the first terrorist attacks in Sri Lanka since the civil war which ended in 2009. The government reported that the groups responsible – including National Thawheed Jammath – have since been neutralised: [2.70]. DFAT has been informed that by in-country Christian sources they did not consider Muslims a threat to the community: [3.42].
DFAT’s assessment was ‘that Christians, particularly those belonging to the Catholic Church and other mainstream denominations, face a low risk of official or societal discrimination, especially in urban areas’. Risks are higher for evangelical Christians. Notwithstanding the 2019 attacks, DFAT assessed ‘Christians face a low risk of violence from Muslims’: DFAT report, [3.47].
New Sri Lankan government
There were national elections in Sri Lanka on 21 September 2024. The new left-leaning President-elect Anura Kumara Dissanayake of the National People’s Power alliance was successful, replacing the outgoing President Wickremesinghe. There are no reports of serious unrest or problems at the time of this decision as a result of this change of government. Its impact on the matters discussed in the country information above has not yet been made clear; but given the political orientation of the new government, the Tribunal thinks it is unlikely that it would materially change the situation in Sri Lanka in the foreseeable future for persons in the position of the applicants.[17]
Country information provided by the applicants
[17] ‘LEFT-LEANING LEADER WINS SRI LANKA ELECTION IN POLITICAL PARADIGM SHIFT’, BBC NEWS, 22 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT ‘LEFT-LEANING ANURA DISSANAYAKE CLAIMS VICTORY IN SRI LANKA’S PRESIDENTIAL ELECTION AFTER SECOND VOTE COUNT’, ABC NEWS, 23 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT ‘CURFEW LIFTED, CHANGE ARRIVES: A FIRSTHAND VIEW OF SRI LANKA’S HISTORIC ELECTION’, LISA SINGH, LOWY INSTITUTE, ‘THE INTERPRETER’, 23 SEPTEMBER 2024, ACCESSED ON 24 SEPTEMBER 2024 AT THE 2024 SRI LANKAN PRESIDENTIAL ELECTION WAS DECLARED PEACEFUL BY THE COMMONWEALTH OBSERVER GROUP: ACCESSED ON 11 OCTOBER 2024 AT THE EUROPEAN UNION ELECTION OBSERVATION MISSION FOR SRI LANKA (EU EOM) SAID IN A PRELIMINARY REPORT THAT OVERALL THE ELECTION PROCESS WAS CONDUCTED INDEPENDENTLY AND WITH TRANSPARENCY, THAT FUNDAMENTAL FREEDOMS WERE BROADLY RESPECTED, THAT THE ELECTION DAY WAS PEACEFUL AND FESTIVE AND THAT THE CAMPAIGN WAS PEACEFUL AND ENERGETIC: 'PRELIMINARY STATEMENT - RESPECT FOR THE DEMOCRATIC PROCESS OUTWEIGHED MINOR DEFICIENCIES IN LAW AND PRACTICE', EUROPEAN UNION ELECTION OBSERVATION MISSION SRI LANKA, EUROPEAN UNION, 23 SEPTEMBER 2024, P.1. THE NEW PRESIDENT’S NATIONAL PEOPLE’S POWER PARTY WON A TWO-THIRDS MAJORITY OF SEATS IN SRI LANKA’S PARLIAMENTARY ELECTIONS IN NOVEMBER 2024: ABC NEWS, ACCESSED ON 11 DECEMBER 2024 AT
As noted above, the applicants’ representative submitted the additional material on 11 October 2024 after the hearing, which includes the supporting articles. The Tribunal has had regard to these documents. The Submissions also referred to ‘examples of the country situation’. [18]
[18] SUBMISSIONS AT PAGES 1 AND 2.
The supporting articles which are directed mainly at the risks faced by Christians in Sri Lanka[19] are consistent with the DFAT report’s information set out above [20] and do not undermine or supplant its assessments set out above, in the Tribunal’s view. [21]
[19]      NAMELY, THE ARTICLES MARKED AS EVIDENCES 1 TO 5 IN G1.
[20]      FOR EXAMPLE, SEE THE DFAT REPORT, [3.42] AND EVIDENCE 1 (‘THE ESCALATING DANGER FACING CHRISTIANS IN SRI LANKA’), AT PAGE 5, REGARDING THE MARCH 2022 INCIDENT IN GALLE.
[21]      FOR EXAMPLE, SEE THE DFAT REPORT, [3.47] AND EVIDENCE 1 (‘THE ESCALATING DANGER FACING CHRISTIANS IN SRI LANKA’), AT PAGE 7, WHERE ITS AUTHOR CRITICISES THE EARLIER DFAT REPORT IN 2021 AS BEING OUT OF DATE AND ‘SEEMINGLY DOWNPLAYING THE DANGERS’. THE AUTHOR IS A MEMBER OF A REFUGEE SUPPORT ADVOCACY GROUP. THE ARTICLE DOES NOT EVIDENCE THAT HE HAS ANY PARTICULAR EXPERTISE OR EXPERIENCE ABOUT THE SITUATION FOR CHRISTIANS IN SRI LANKA; UNLIKE THE DFAT REPORT WHICH IS BASED ON ON-GROUND KNOWLEDGE AND DISCUSSIONS, AND TAKES INTO ACCOUNT CREDIBLE OPEN SOURCE REPORTS.
The examples referred to in the Submissions are about incidents of violence, property damage or threats against Christians in May and June 2023 in non-urban areas of Sri Lanka. They are also consistent with the DFAT report’s information and do not undermine or supplant its assessments set out above, in the Tribunal’s view.
Some of the supporting articles are directed at other matters: [22] the use of force including weapons by police during political protests in Sri Lanka between March 2022 and June 2023; the economic crisis in Sri Lanka in early 2022; and, shortages of basic drugs and medical supplies in January 2023 arising from Sri Lanka’s economic woes. These matters contributed to a general unrest and instability in Sri Lanka when they occurred but they are immaterial to the applicants’ claims based on their religion and ethnicity. They do not undermine or supplant the DFAT report’s information and assessments set out above, in the Tribunal’s view.
The applicants’ submissions
[22] NAMELY, THE ARTICLES MARKED AS EVIDENCES 6 TO 8 IN G1
In the Submissions, the first applicant:
a.requested ‘Complimentary Protection as [he] faces an imminent threat to his life, should he not be permitted to remain lawfully in Australia’; [23]
b.stated that he ‘presently, faces a significant threat to his life including fear of persecution should he return to the country … this threat is imminent. There is serious systematic discrimination of Christians in Sri Lanka and the clear evidence of the persecution believed to be often perpetuated by government and/or from sources of authority. The Applicant being a practicing Christian, falls under the group which is subject to threat and violence because of their religious beliefs’; [24]
c.stated that he ‘has over the years suffered from mental health issues as a result of his choice to practice a particular religion. The Applicant’s only desire was to find a safe place to live and a country to call home, where he can practice his religion without threat’; [25]
d.‘submitted that having due regard to the imminent threat of life, emotional impact, systematic discrimination towards Christians in Sri Lanka, which the Applicant will be directly impacted, should he be not granted Complimentary Protection’. [26]
Conclusions on the objective standard of persecution
[23]      SUBMISSIONS AT PAGE 1.
[24]      SUBMISSIONS AT PAGE 1.
[25]      SUBMISSIONS AT PAGE 3.
[26]      SUBMISSIONS AT PAGE 3.
Is there a real chance the applicants will suffer serious harm in the foreseeable future as a result of their religion and ethnicity if they return to Sri Lanka?
For the reasons set out below, in the Tribunal’s assessment, based on their particular circumstances and the country information, the answer is ‘no’: the prospect of this is remote.
As to their particular circumstances, they lived in and are from Colombo. If they returned, they would be expected to live there. Presently, their son still lives there, although he is in the process of moving to [Country 1] (but has been doing so since 2016 when the application was made). They were and are mainstream Roman Catholics and have not been evangelical. They are elderly, which means they have attendant vulnerabilities to any risks of harm. Nevertheless, they are clearly of some financial means and have some family support presently in Sri Lanka and could expect support from their Australian family.
Although the applicants referred to mental health problems as a result of their religion or concerning any return to Sri Lanka, no medical evidence was provided about this. The Tribunal accepts that they are anxious and fearful about returning there, particularly given their age, but cannot make any findings about their mental health conditions. In any event, such matters would not of themselves found a claim as a refugee: there would not be any agent of persecution and a lack of a refugee nexus.
Significantly, as they admitted, they have never suffered any harm in the past in Sri Lanka on account of their religion or ethnicity.
As the applicants conceded at the hearing [27] and as the country information based on the DFAT report set out above discloses, the risk of harm in Sri Lanka as a result of being a Christian is presently low: violence against Christians is sporadic, and mainly directed against evangelical and proselytising Christians outside urban areas. The risk is still low now even after the Easter Sunday 2019 attacks against churches.
[27]The first applicant said that the religious unrest has settled down now. He said there was no present religious unrest. However, he was very much concerned about the political situation in Sri Lanka, with serious disputes and differences between political parties. He thought that everything was unsettled and he was not comfortable about returning there, particularly with the upcoming election. There are no reports of serious disturbances in Sri Lanka following the recent presidential and parliamentary elections.
The risk of harm to the applicants because of their religion and ethnicity, particularly as urban mainstream Roman Catholics, is low: whether that harm be from governmental or societal (Buddhist, Sinhalese, Hindi or other) sources. Their Burgher ethnicity does not suggest that this risk would be materially increased. This is not to suggest that there is no discrimination against Christians or Burghers in Sri Lanka or no prospects whatsoever of any harm; but rather that the risks of persecution to the applicants for these reasons are low if they return.
The Tribunal does not think that the advanced age or attendant vulnerabilities of the applicants materially elevate this risk. A subjective fear on the part of an asylum seeker does not convert non-persecution into persecution.[28] When assessing whether discrimination faced by an applicant amounts to ‘serious harm’, all relevant circumstances must be taken into account, including personal circumstances such as the applicant’s age and frailty.[29] Based on the country information and their circumstances, the Tribunal nevertheless is not satisfied that the applicants’ age or vulnerabilities elevate the risk and harm they could face if they return to Sri Lanka to a real chance of serious harm.
[28]Prahastono v MIMA (1997) 77 FCR 260 at 269, 271.
[29]AGA16 v MIBP [2018] FCA 628 at [35]; the Full Federal Court in SZTEQ v MIBP (2015) 229 FCR 497 at [153].
The Tribunal does not accept that the first applicant faces an ‘imminent threat to his life’ (as submitted) if he returns to Sri Lanka, based on their lack of harm there in the past and the country information set out above.
Weighing this all up, the Tribunal is not satisfied, for the reasons set out above, that the objective standard of persecution for these claims would be met: relevantly, that there is a real chance the applicants will suffer serious harm in the foreseeable future because of their religious and ethnic claims if they returned to Sri Lanka.
Moreover, to the extent that claims are made that they will suffer harm in the foreseeable future because of a political or economic crisis or uncertainty in Sri Lanka: any putative harm they might suffer would not be directed at them for a refugee reason; there is no agent of persecution for such harms; and, the Tribunal is not satisfied, on the material, that there is a real chance they will suffer serious harm because of this.
Conclusion on refugee criterion

Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Assessment of complementary protection criterion
The Submissions were directed at the applicants obtaining complementary protection, rather than protection as refugees. The representative conceded that they were not refugees. Nevertheless, as explained above, the Tribunal has considered whether they are refugees and concluded that they are not.
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa): namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Sri Lanka, there is a real risk they would suffer significant harm, as exhaustively defined in s 36(2A) of the Act.
Principles
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[30] (which applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J).
[30]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick & Jagot JJ, 20 March 2013) per Lander & Gordon JJ at [246], Besanko & Jagot JJ at [297], Flick J at [342].
‘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.
Assessment of claims
By similar reasoning to that set out above for the refugee criterion (but excepting any references to ‘serious harm’ which applies only to the refugee criterion and instead considering ‘significant harm’ which applies to the complementary protection criterion), the Tribunal is not satisfied, based on the matters referred to in paragraphs 67 to 89 above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal from Australia to Sri Lanka, there is a real risk that they will suffer significant harm.
Moreover, to the extent that claims are made that they will suffer harm in the foreseeable future because of a political or economic crisis or uncertainty in Sri Lanka: there is no intentional infliction of such putative harm on them by anyone; it is a risk faced by the population generally and not faced by the applicants personally; and, the Tribunal is not satisfied, on the material, that there is a there is a real risk that they will suffer significant harm because of this.
Conclusion on complementary protection criterion
Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Referral for Ministerial intervention
At the hearing and in the Submissions, the applicants asked the Tribunal to consider a reference for Ministerial intervention, if it was not satisfied that they were owed protection obligations.

100. Ministerial intervention relevantly involves the Tribunal referring the case to the Department for possible consideration by the Minister pursuant to s 351 of the Act. The section gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. It is a personal and non-compellable discretion of the Minister. [31]
[31] Davis vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, at [12].
The applicants’ submissions on referral for Ministerial intervention
101. The Submissions state: [32]
[32] SUBMISSIONS AT PAGE 4.
It is submitted that the circumstances faced by the Applicant are exceptional, compelling, compassionate, and consistent with the public interest justifying your exercise of discretion to request the Minister to intervene and grant the Applicant a temporary substantive visa to remain lawfully in Australia. There is no public interest served or benefit gained in compelling the applicant to return to Sri Lanka when he is integrated into Australian society for more than a decade.
The Applicant requests that due regard be given to his length of Stay in Australia, his known and only family ties who live in Australia and his age. The Applicant has not been in touch with his children from his previous marriage for over thirty years and has family members in Australia who are Australian Citizens, who will be seriously impacted, should the Minister not intervene. In this regard, we submit there are compelling circumstances to request for your discretion under [s 351] of the act.

102. In support, the Submissions referred to the daughter’s and the grandson’s letters.
103. The daughter’s letter states:
… I would like to submit this statement in support of my parents’ visa application.
Since 2012, my parents have been living in Australia while awaiting the processing of their application. My husband and I have taken responsibility for their care, ensuring that all their needs are met. We are a close-knit Christian family, and as their eldest child I’ve taken on the role of caring for my elderly parents.
Growing up in Sri Lanka we lived through many religious and ethnic conflicts, riots, and the LTTE war. Our family has endured numerous traumatic experiences and pain with our time in Sri Lanka. Despite these hardships, my parents did everything in their power to protect my brother and myself. One of the most devastating moments for our family was in 1996 when my brother, at just [age] years old, was severely injured in the Central Bank bombing. He had to undergo three surgeries and is now partially blind. My father narrowly escaped death twice during those turbulent years. These painful memories still arise occasionally, reminding us what we endured in Sri Lanka.
Over the past 12 years, my parents have lived a peaceful and fulfilling life here in Australia. They have been an integral part of our family, attending important events and gatherings, and have been a pillar of strength for me. They’ve also played a significant role in my son’s upbringing. Prior to their visit in 2012, they made it a point to visit us at least once a year. Since my father retired in 2012, their only wish has been to live close to my family and myself.
In the process of waiting for an outcome on their application, my parents have continued to enjoy a stress-free and peaceful life in Australia. They have been a part of the community and our Parish Church, generously giving their time. However, my father who is now [age] years old has slowed down significantly due to age and now needs assistance with his mobility. If they are forced to return to Sri Lanka, it would deeply affect our family. It would be impossible for them to start over at their age, and the emotional and physical toll would be overwhelming, especially for my father given his age and health. The thought of this transition is deeply troubling, as it would certainly impact their well-being and our entire family.
It has been over ten years since my parents first submitted their application for a protection visa, a time when religious conflicts and attacks against Christians were rampant in Sri Lanka. This was well documented in the evidence provided during their application. In the years since, Sri Lanka has continued to experience conflicts and crises. Having lived through this, I understand the ongoing uncertainty in the country. Given their age, I cannot imagine them enduring future unrest. In their twilight years, I want them to live a peaceful, happy life close to us here in Australia.
I kindly ask you to consider my parents’ age, the strong bond we share as a family, and the emotional and mental stress that this situation would cause for all of us when making your decision. ….

104. The grandson’s letter states:
… I’m writing this letter on behalf of my grandparents … who are currently going through the process of getting their visas. I want to begin by expressing just how much they mean to me, our family and the community they are a part of. The thought of them being forced to return to Sri Lanka is heartbreaking and unimaginable.
Growing up, my grandparents were a huge part of my life. Every year without fail they made time to visit us, and those moments became the foundation of some of my favorite memories. They were there for every holiday and every big family event. Their love and guidance were abundant towards me and my family. Since they have been in Australia, our bond has only gotten stronger. We all shared a home for many years and their presence in our daily lives brought so much comfort, wisdom, and support. I honestly can’t picture my life without them around anymore as they have become an integral part of my life.
While they didn’t raise me as primary caregivers, they were always there when I needed them. Whether it was helping my parents out or being there for me, they played such a big role in shaping who I am today. My grandfather …has been our rock. Even now though he’s slowed down with age, his strength both emotionally and mentally never wavers. His advice, his quiet support, they’re things I’ve leaned on for as long as I can remember. Even now, I can’t imagine going through life without being able to turn to them, both him and my grandmother …
The idea of them being sent back to Sri Lanka fills me with fear. They’ve already been through so much there. I’ve heard the stories of what they had to endure, especially due to their religious beliefs and the conditions of the country. The idea of them returning to a place that has caused them pain, especially at this stage of their lives, is terrifying. All I want for them is peace, comfort, and to be able to live the rest of their lives surrounded by the family who loves them here in Australia.
It’s especially difficult to comprehend the thought of them being forced to leave after 12 years here with us. For over a decade, they have worked hard to build a life in Australia, forging meaningful relationships with friends, neighbours, and their church. This entire visa process has been ongoing for 12 years, and it would feel deeply unfair and heartbreaking for them to be removed after all this time. They’ve given so much of themselves to us and the community, and to take that away from them now, after all they’ve built, would be devastating. It’s hard to imagine them having to start all over alone in a place that is no longer home to them.
Please, I ask you to think about the emotional toll this would have on them and on us. We love them deeply, and their well-being is everything to us. Losing them from our daily lives would be unbearable. I kindly ask that you allow them to stay in Australia, the place that is truly home to them now. ….

The oral evidence at the hearing in support
105. The applicants’ daughter and son-in-law briefly gave evidence in support of the applicants at the hearing.
106. The daughter said that they have been here since 2012 with her husband and son. She said they were close-knit family who had been together here for 12 years. She said the application had been made in 2016 because of incidents which occurred over religion and problems then in the country. She said that she accepted there were no religious conflicts now but there was a worse situation: there was a political crisis. She said if they returned it would be very stressful for them and for her family, given their age. Her family would miss them very much.   She did not know how they would manage back in Sri Lanka . She said it was part of her culture to take care of her parents.
107. The son-in-law law echoed and supported this. He said they had a close bond with the applicants. He said it would be very difficult for his son to lose his grandfather if he returned. He said they want to take care of the applicants, who have been through so much in Sri Lanka.
The Tribunal’s consideration of the referral
108. The Tribunal has considered the applicants’ case in the light of the ministerial guidelines relating to the discretionary power set out in the Departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417, and s 501J)’.
109. In the Tribunal’s view, the main relevant guidelines in this case are:
a.a case having ‘unique or exceptional circumstances’, namely that there are ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family of is an Australian citizen or Australian permanent resident’: section 4;
b.‘the level and nature of the person’s integration into the Australian community and the length of time they have been on Australia, both as a lawful and unlawful non-citizen’: section 5;
c.‘I do not wish to consider repeat requests. Where I or another Minister … have declined to intervene … I expect the person concerned to leave Australia. In limited circumstances, a repeat request may be referred to me if the Department is satisfied that there has been a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request and … these new, substantive issues fall within the unique or exceptional circumstances described in section 4’: section 10.2; and
d.‘I may consider intervening in cases where the circumstances do not fall within the unique or exceptional circumstances as described in section 4 … if I consider it to be in the public interest’: section 12.

Application of the guidelines
110. The Tribunal refers to the evidence and other matters set out above particularly in paragraphs 24 to 36, 53 to 55, 57 and 58, and 101 to 107.
‘a significant change in circumstances since the previous request(s) which raises new, substantive issues that were not provided before or considered in a previous request’ – section 10.2
111. In the Tribunal’s view, this guideline could be met by the provision of the recent material outlined above (namely, the oral evidence of the applicants’ daughter and son-in-law and the daughter’s and grandson’s letters referred to above) in support of the application. They show an expression of full support by the daughter’s family for the applicants remaining in Australia and evidence the strength and closeness of the applicants’ relationship with the daughter’s family. Moreover, over eight years have passed since the refusal in July 2016, during which the applicants have continued to live with the daughter’s family and deepened their relationship and connection, particularly with their grandson.
‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit’: section 4
112. The Tribunal considers, based on the material before it, that this guideline could be met. Their daughter, son-in-law and grandson are all Australian citizens. It may be inferred from the material before the Tribunal – though there is no expert evidence about this - that the applicants’ removal from Australia could result in serious, ongoing and irreversible harm and continuing hardship to the daughter’s family, by the loss of the applicants’ presence, emotional, familial and other support (and the resultant anxiety and apprehension if they are removed).The focus of this guideline is on the effect on the Australian citizen or family unit, not on the applicants.In the Tribunal’s view, this is a case where there could be said to be such strong compassionate circumstances.
‘the level and nature of the person’s integration into the Australian community and the length of time they have been on Australia’: section 5
113. The applicants have lived in Australia since September 2012. They visited Australia before then regularly to see their daughter’s family from December 2000. English is their first language. They regularly attend church here. They have long-standing connections to the Australian community. All this suggests a high level of integration into the Australian community. The Tribunal considers that these matters could support an intervention.
‘I may consider intervening in cases where the circumstances do not fall within the unique or exceptional circumstances as described in section 4 … if I consider it to be in the public interest’: section 12
114. This is a matter for the Minister in exercising the discretion.
Conclusion on referring the case for Ministerial intervention
115. The Tribunal accepts the applicants’ Submissions, the oral evidence and the letters in support. It found this evidence powerful and compelling.
116. For the above reasons, the Tribunal has decided to refer the case to the Department for possible consideration under s 351 of the Act. It could come within the guidelines, even though it is a second request for intervention.
117. In making this referral, the Tribunal is particularly focussed on the applicants’ age, their length of time in Australia, their strong and clearly close family bond in Australia and the effect their removal might have on them and their daughter’s Australian family.
118. It may be, in the circumstances, that the Minister wishes to exercise the discretion to allow them to remain in this country, as a matter of compassion (as the daughter wrote, ‘In their twilight years, I want them to live a peaceful, happy life close to us here in Australia’). It would not only benefit the applicants but would be of considerable benefit to their Australian family.
Assessment of family member

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visas.
Conclusion

120. For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicants pursuant to s 36(2) of the Act. Accordingly, the Tribunal has concluded that the decisions under review (not to grant the applicants protection visas) should be affirmed.
121. The Tribunal has also decided to refer the case to the Department for possible consideration by the Minister under s 351 of the Act.
DECISION

122. The Tribunal affirms the decisions under review.
Representative of the applicants:           Mr Don Susantha Katugampala
Date of hearing:  19 September 2024
Date of last submissions:  11 October 2024

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…