2109703 (Refugee)

The applicant, a national of Sri Lanka, sought a protection visa, claiming he is homosexual and fears persecution if returned to his home country. The dispute centred on whether his fear of persecution was well-founded and if Australia owed him protection obligations under the Migration Act 1958. The matter was before the Tribunal for review.

The court was required to determine if the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of the Act, or if he qualified for complementary protection. This involved assessing whether he had a well-founded fear of persecution for reasons of his sexual identity, whether LGBTI persons in Sri Lanka constituted a particular social group, and if state protection was available to him.

The Tribunal found that the applicant was homosexual and had suffered significant harm, including police assaults, due to his sexual identity in Sri Lanka. It was satisfied that LGBTI persons in Sri Lanka form a particular social group. Despite acknowledging contrary views from the UK Home Office and DFAT regarding the general treatment of gay men in Sri Lanka, the Tribunal considered that the existence of laws criminalising homosexuality, coupled with deeply ingrained societal anti-gay sentiment and a lack of protective legislation, created a real risk of extortion, sexual abuse, and arrest amounting to serious harm. The Tribunal concluded that state protection was not available and that the applicant's fear of persecution was well-founded.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the refugee criterion under s 36(2)(a) of the Migration Act.