2115776 (Refugee)

2115776 (Refugee) [2022] AATA 3160 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2115776
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Deputy President J.L Redfern PSM
DATE:3 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 March 2022 at 7:35pm
CATCHWORDS
REFUGEE – Protection (Class XA) (Subclass 866) visa – Sri Lanka – application for protection on the basis of the refugee and complementary protection criterion – attack alleged to be politically motivated – whether there is a real chance or real risk of sustaining serious or significant harm – credibility concerns – late production of evidence – not satisfied the applicant is a refugee –failed asylum seeker – separation from wife in Australia found not to enliven complementary protection obligations – not satisfied that the applicant faces a real risk of significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA 36(1B), 36(1C), 36(2)(a), 36(2)(aa), 36(2C), 423A and 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
GLD18 v Minister for Home Affairs [2020] FCAFC 2
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 December 2021
Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 18 December 2015
Performance Report 2019 - Sri Lanka Police, Government of Sri Lanka, 2019, 20210506131815
Direction No. 84
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 17 March 2017. He was born in [the Western Province], where he lived until he arrived in Australia [in] February 2017 on a visitor visa. The applicant made his application for a protection visa within a month of arriving in Australia. He claims to fear persecution if he returns to Sri Lanka based on his political opinions. He claims that in 2016 he was attacked by a gang and was subsequently hospitalised. The applicant believes that if he returns to Sri Lanka he will be again attacked and will not be protected by the government.
The applicant appeared before me by video from an immigration detention centre on 19 January 2022 and at a resumed hearing on 2 February 2022. The second hearing proceeded through the combination of video and telephone because of poor internet connection with the detention centre. The applicant gave oral evidence on both occasions. He also made submissions at both hearings. At the resumed hearing, the applicant’s mother, [name], gave evidence by telephone from Sri Lanka. The hearings were conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was unrepresented. He has been in immigration detention since [2021] and prior to this, he was in a correctional centre serving a sentence for assault.
For the following reasons, I have concluded that the decision under review should be affirmed.
BACKGROUND AND PROCEDURAL ISSUES
When the applicant lodged his application for protection, he was represented by a migration agent. The applicant set out his claims in the protection application form and provided documents, including photographs, in support of his claims.
Because of issues relating to the COVID-19 pandemic, the applicant was invited to attend an interview by telephone with a delegate of the Minister in May 2020. He declined and requested that he be invited to an in-person interview when such interviews resumed. There was no in person interview arranged and by letter dated 7 September 2021 the applicant was requested to provide further information to support his claims. The delegate also raised concerns about the credibility of the applicant’s claims. The applicant provided written submissions and evidence through his representative, requested further time to provide documents and requested that any decision be delayed pending an in-person interview. The delegate did not commit to providing the applicant with an in-person interview but advised that any decision in respect of the application would be delayed until after 24 October 2021.
By letter dated 27 October 2021, the delegate notified the applicant of the refusal of his application for a protection visa. The decision record was attached to the notification. In essence, the delegate refused to grant the visa because he was not satisfied, on the information before him, that the applicant was a refugee. While the delegate accepted that the applicant may have been assaulted and injured in 2016 when he was living in Sri Lanka, it was not accepted that the assault was politically motivated but rather a random act. The delegate had concerns about the credibility of the applicant’s claims and also rejected the applicant’s claims in respect of complementary protection these grounds.
The applicant was imprisoned in 2020 for unlawful assault. He was released from prison in [2021] and was immediately transferred into immigration detention, where he has been since this time.
On 24 December 2021, the applicant was invited to provide any further evidence and submissions in support of his claims by 12 January 2022. The applicant did not provide any response to this request for information by the due date. It should be noted that this request was a general request for information and not a formal request made under the relevant legislative provisions which would have had the effect of removing the applicant’s entitlement to a hearing for non-response. As such, the failure of the applicant to respond has no impact on his entitlement to a hearing in the circumstances of this case.
By notice dated 5 January 2022, the applicant was invited by the Tribunal to attend a hearing by video link from immigration detention on 19 January 2022.
The Tribunal was advised on 10 January 2022 that the representative acting for the applicant had ceased to act and had notified he the applicant accordingly. It was also confirmed that the applicant was provided with all relevant Tribunal documents, including the invitation to the hearing and the request for further information.
To ensure that the applicant had all relevant documents before him, the Tribunal provided copies of the Department file, the Tribunal request for further information and a copy of the Department record known as the Integrated Client Services Environment (ICSE). The documents were provided to the applicant at the detention centre with the assistance of detention centre staff.
At the commencement of the hearing listed on 19 January 2022, the applicant said he had a statement in his possession from his former wife that was relevant to his claims and which he believed he had provided to his lawyers in 2019. He was surprised the document had not been provided and arranged for it to be sent during the course of the hearing by photographing a copy of the document and emailing it through to the Tribunal during the course of the hearing. This document was not in the Department or Tribunal files. Since the applicant was no longer represented at the hearing, this issue could not be clarified with his lawyers. The statement was about threats said to have been made to the applicant’s former wife and his mother in 2017 which the applicant asserts supports his claims.
Section 423A of the Act provides that if an applicant raises a claim that has not been raised before the primary decision-maker or presents evidence in the application that was not presented before the primary decision was made, in making a decision on the application the Tribunal is to draw an inference unfavourable to the credibility of the claim or the evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. In this case, it appears that the statement from the applicant’s former wife was not provided to the delegate. It is dated October 2017 and purports to have been issued in October 2018 and therefore would have been in existence at the time of the delegate’s correspondence. The applicant’s explanation is that he gave this statement to his lawyers in about 2019. It is apparent from the Department file that the applicant’s former lawyers provided numerous submissions to the delegate on the applicant’s behalf following the initial correspondence from the delegate. Yet this statement was not provided. It seems implausible that the applicant’s lawyers would not provide this document to the delegate if it was given to them by the applicant in 2019.
While this explanation was unconvincing, in circumstances such as this where the primary decision-making process was abridged and there was no interview, caution should be exercised in drawing an unfavourable inference about the credibility of evidence not previously produced on the basis of s 423A of the Act.
I therefore scheduled the review for a further hearing to give the applicant the opportunity to arrange for his former wife and mother to give evidence so that the provenance and credibility of the statement and the claims about threats said to have been made could be examined. The origin of this statement and its contents was the subject of evidence at both hearings.
Prior to the second hearing, extracts of country information were provided to the applicant by letter dated 27 January 2022. The applicant was also advised that little weight could be placed on the statement made by his former wife without the author of the statement being available to give evidence. It was noted that a further hearing had been scheduled to give the applicant the opportunity to make arrangements for his former wife to give evidence. It was also noted that his mother could give evidence of the schedule hearing if he so wished. In response to the letter, the applicant provided a statement from his mother, translated into English, together with letters said to be from his family doctor and from the applicant’s family lawyer.
The proceedings were listed for hearing by video on 2 February 2022. However, because the Internet connection was poor, the video connection was maintained but the applicant gave evidence simultaneously through a telephone connection. The interpreter also interpreted through MS Teams. The applicant’s mother gave evidence by telephone from Sri Lanka. After the initial difficulties the hearing proceeded smoothly.
The applicant’s wife, [Mrs A], attended the second hearing but did not give evidence. The applicant separated from his former wife in about 2019 and remarried while he has been living in Australia. The issue of whether the applicant’s wife would give evidence was raised at the commencement and in the closing stages of the hearing. According to the applicant, he told his wife about the threats and she could give evidence about what he had told her. I accept that the applicant may have spoken to his wife about his claims for protection and threats that he alleges were made to him. Evidence of this nature does not, of itself, support the applicant’s claims if his wife is merely reporting what he told her. The applicant confirmed that his wife did not have firsthand knowledge of any of these matters and I therefore decided not to take evidence from her. Relevantly, there was no suggestion that recent threats have been made to the applicant while he was in Australia that his wife observed or overheard.
SUMMARY OF THE APPLICANT’S CLAIMS
The applicant’s claims are as set out in his application, two handwritten letters (one provided to the Department on 30 September 2021 and the other dated 22 October 2021) and in a brief typewritten statement dated 14 March 2017. The claims were summarised in the decision record of the delegate as follows:
(1)The applicant was violently assaulted by a gang of men on 3 June 2016, during a visit to his [village] in Sri Lanka, to attend a funeral house. He was severely beaten with rods, required hospital admission and treatment, and was almost killed;
(2)He believes the assault was because of his political beliefs;
(3)The applicant’s wife lodged a police case [in] June 2016 but nothing was done;
(4)The applicant fears that if he returns to Sri Lanka he will be assaulted and beaten again by the same group of people, as they dislike his political opinion. He fears they will kill him;
(5)The applicant does not believe the authorities in Sri Lanka will protect him as his wife lodged a case with the police regarding the assault and nothing had been done;
(6)The applicant cannot relocate within Sri Lanka to avoid harm as he does not have the means to do so and does not know where to go or what to do. He fears that if he relocates he will be tracked down, hunted and attacked.
At the hearing, the applicant confirmed that these were his claims but, in addition, said he believed that the people who attacked him in 2016 were still trying to find him and that they would assault and beat him on his return. He stated that the attackers had threatened his former wife and mother after he left Sri Lanka, and this supported his current fears about the harm he would face on his return. He did not believe he could relocate and he considered that the police and law enforcement systems in Sri Lanka are so bad that he would not be protected.
RELEVANT LAW AND 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.
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.
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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84,[1] made under s 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Home Affairs (the Department) - Procedures Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’ and Procedures Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines’. The Tribunal must also take into account any country information assessment 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.
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Sri Lanka dated 23 December 2021. I have considered this report, together with other relevant country information referred to in these reasons. The applicant did not refer me to any other published country information
I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of this country information is set out later in these reasons
OUTLINE OF EVIDENCE AND INFORMATION PROVIDED
The applicant lodged a formal application for protection apparently dated 14 March 2017. He completed all relevant answers requested and provided a copy of his passport, photographs of his injuries while he was in hospital being treated, his marriage and birth certificates and the marriage certificate of his parents, medical records, including details of x-rays undertaken and a medical certificate from a doctor dated 12 March 2017, and a letter from his wife “in relation to his injuries and assault”.
In answer to the question about why he left Sri Lanka, the applicant stated as follows:
Due to my political beliefs, I was violently assaulted by a gang of men on 3 June 2016. I was severely beaten up and required hospital admission and treatment.
I was badly beaten with a rod. I was almost killed.
I was visiting a funeral house in my village in regard but when this happened.
In answer to the question of what would happen if the applicant returned to Sri Lanka, the applicant stated as follows:
If I return I fear the same group of people who dislike my political ideas will again attack me and I might be killed, I was very badly beaten.
Attached are pictures of my hospital stay in the injuries are suffered.
In response to the question about whether the applicant sought assistance in relation to the harm, the applicant responded:
Yes my wife lodged a police case on [day] June 2016 –reference [number] but nothing has been done.
In response to questions about whether the applicant feared he would be harmed on his return to Sri Lanka and whether authorities would protect him, the applicant responded as follows:
I was so badly beaten and assaulted. If I return I will be assaulted and beaten again. I do not want to return to Sri Lanka. It is too dangerous for me. I was badly beaten I was badly injured in the assault.
My wife has already lodged a CIBA case with the police in relation to the assault on me due to my political beliefs and it has been almost a year and nothing has been done. Those group of men are still out there and I live in fear every day for my life and my safety.

The medical documents provided by the applicant which included a document purporting to be a medical diagnosis, partly in English and partly in another language, referring to an assault by “known people” with wooden bars and hands around 12am. The date of admission is said to be 4 June 2016 and the date of discharge is said to be 8 June 2016. The applicant also provided handwritten documents which appear to relate to this hospital admission, being notes of x-rays and scans undertaken. One of the documents records that there was “no evidence of intra-abdominal solid organ injuries”. There is no reference in any of the documents to broken bones or fractures.
The applicant also provided a medical certificate in English dated 12 March 2017 from [a hospital] said to be signed by [a doctor] which stated as follows:
This is to certify that [the applicant (PP number)] was under my treatment for multiple contusions left side conjunctival haemorrhage with peri-orbital haematoma following an assault by a group of people on 4th June 2016. Initially he was managed General Hospital in [village] Sri Lanka and brought to me on 8th June 2016 with severe headache and severe back pain. The skull, chest and pelvic X rays of this patient showed no fractures.
He was managed with strict rest in bed and anti-inflammatory and analgesic medicine. As his medical situation improved with the above treatment, he was discharged and asked to continue to rest for a period of one month with regular hospital reviews, as well as continue with medication.
This medical certificate is consistent with medical documents provided by the applicant.
The applicant provided copies of photographs which are said to be photographs taken of him when he was in hospital and a typed statement dated 14 March 2017 in which he stated as follows:
[the applicant] [X] years of age domicile of [address]. The complainer is my wife. On 03.06.2016 I visited a funeral house in my [Village]. I went there walking stopping the car on the way side. When I was returning a gang assaulted me with an iron rod and with their hands as a result of the assault my lips blasted and several brutal injuries on the face and my shoulder and hand affected as a result of assault. Thereafter I was taken to the [Village] Hospital to the treatment. [The] Police had file a case in [Village] magistrate court (in [City]) against the gang of people who assaulted me. The case number is [removed].
While I were (sic) in the hospital various type of people had come closer to bed. Where I were (sic) bedridden. By these acts it gave me feeling that some outsiders are trying to force harm to me. I was warderd (sic) in [Hospital] Ward 7 under the bed head ticket [removed]. [The] Police recorded a statement from me at the hospital premises. My wife [Mrs B] had requested protection of my life from Director General Health Services and the Police. (That letter attached herewith)
The assaulted cause to [applicant] is due to Political differences Which I presume. Further after the incident those who assaulted [the applicant] has threaten to kill him in view of this his wife has made a complaint to the [police] station on [day].06.2016 no [case number removed].
Attached to the statement is a letter dated 6 June 2016 in English addressed to the “Director [of the] Hospital” to the following effect:
Regarding the safety of a patient
We have observed some people who assaulted my husband and who is under the custody of the Prision (sic), [the applicant] in Ward 07 bed No. 06 in your Hospital are moving near the bed of him yesterday and today as such we respectfully plead you to draw your kind attention over the safety of this patient.
Yours faithfully,
Sgd illegible
[Mrs B]
[Mrs B] is recorded in the application for protection as the applicant’s wife. The applicant also provided a marriage certificate evidencing this. This appears to be the letter from his wife referred to in the application.
By letter dated 7 September 2021 from a delegate of the Minister, the delegate noted that the applicant had provided four photographs depicting a man lying in a bed. The applicant was requested to explain what the photographs depicted, when the photographs were taken, why they were taken and who took the photographs. The delegate also noted that the applicant’s statement of claims lacked detail about why the applicant was assaulted by a group of people because of his political opinion. The applicant was requested to provide details of his political beliefs, details of any past political activity that he was involved in, details of how the actual assault occurred and details regarding when his wife was alleged to have lodged a case with the police, including copies of any paperwork from the police. The delegate noted that he had concerns about whether the applicant’s claims were genuine and that providing further information would assist the delegate in making an assessment of the applicant’s claims. The delegate also raised concerns about the delay in his departure, noting that the applicant was alleged to have been assaulted on 3 June 2016 but did not leave Sri Lanka until [February] 2017. The delegate also raised questions about why the applicant was unable to safely access and reside in other places such as [City] or [City].
In response to this letter and subsequent queries by the delegate, the applicant provided two brief handwritten statements or letters.
The handwritten statements provided by the applicant were to the following effect.
In his undated letter provided to the delegate as an attachment to an email from the applicant’s former representative dated 30 September 2021, the applicant wrote that he was concerned that he faced a dangerous situation in Sri Lanka and that he came to Australia to save his life. He was attacked by 10 people and they tried to kill him because he supported a political party. He was admitted to hospital and his mother took some photos of him in hospital. He has more documents to prove his situation, but he has not had the opportunity to provide those documents because he was in prison. The applicant stated that he wanted the opportunity to stay in Australia because he believed he faced a dangerous situation in Sri Lanka. He only has his mother in Sri Lanka and does not have any other place to live. His mother was very concerned and upset about the situation. The applicant had permanent employment and a place to live and had not committed any unlawful acts until recently, for which he was very regretful.
In his letter dated 22 October 2021, the applicant wrote that his mother had taken photographs to show the police. These are the photographs that were provided to the Department and the Tribunal. He stated that he believed the assault was politically motivated because a “month earlier [he] had been working to help with the campaign for the loosing (sic) political party”. The applicant further stated that the police reports regarding the assault were in his apartment. He stated that after the assault he left his house and went into hiding at a friend’s house in Kandy and spent his time trying to arrange to leave Sri Lanka safely. Since leaving Sri Lanka his mother had people turn up looking for him at her house. She has complained to the police and has police reports to prove it. He does not believe that he could relocate because the system is corrupt, and he was not protected before.
At the first hearing, the applicant gave evidence by MS Teams video from the detention centre. Set out below is an outline if this evidence. This is not intended to be a transcript of his evidence but rather an account of the key and most relevant aspects.
The applicant said that he was born in [Village] in the Western Province where he was educated and worked. His father left when he was young and he was unable to continue his studies. The applicant left school when he was [X] years old in [year] and did odd jobs. He and his mother initially lived with his grandfather and grandmother in [Village]. He met his first wife and they married in 2009. She did not travel with him to Australia, and they separated in 2019 because she said that she wanted to get on with her life. They divorced in 2019. He continued to have regular contact with his former wife until about March 2021 but does not now know where she is. The applicant married again in Australia in 2020. He is still married but he and his wife had difficulties in their relationship and he was convicted of assaulting his wife, for which he served time in prison. The applicant was sentenced to [X] months in prison and was released in [2021] after which he was immediately transferred to immigration detention. The applicant said that there is still an intervention order in place but his wife was still supportive of him and they are together.
The applicant was asked about an entry in ICSE to the effect “[s]pouse advises VH wanted for [a crime] in Sri Lanka”. He said that this was not true and that his wife may have said this to immigration officials when she was angry with him. He denied that this was the case and he said he would not have been allowed to leave Sri Lanka if this had been the case. There is no evidence or information to support this, other than being an unsubstantiated comment said to have been made by the applicant’s spouse. There is also considerable force to the applicant’s evidence that he would not have been able to leave Sri Lanka.
There is no evidence before me that the applicant is being sought by Sri Lanka through extradition. Relevantly, this was not raised by the delegate in his decision even though it would have been relevant to the question of whether the applicant was excluded from protection obligations.[2] As the delegate did not pursue this, I infer that there was no information before the delegate to substantiate this allegation.
[2] Refer ss 5H(2)(b), 36(1C) and 36(2C) of the Act relating to serious crimes committed before entering Australia.
The applicant’s criminal history in Australia and any potential criminal issues arising in Sri Lanka are not relevant to this review because this was not the subject of the refusal. The Migration and Refugee Division does not have jurisdiction to deal with such cases in any event. This was explained to the applicant during the course of the first hearing. The applicant was nonetheless asked about these matters to give a broader understanding on whether any of these matters were relevant to his claims for protection. I am not satisfied that they are, but the applicant’s evidence on these matters has been included in this decision for completeness because it was the subject of specific questioning.
The applicant was asked about the incident alleged to have taken place on 3 June 2016.
He said that he was attending a funeral house and taking provisions to the family because it was the custom for family members to stay overnight at the funeral house and when he was returning to where his car was parked at about 12.30am or 1:30am he was attacked. A group of men came from nowhere and started to attack him. He believes there was at least 10 men and it was dark. He was not able to identify any of them at the time. He was beaten and lost consciousness. He said that people from the funeral house came to his assistance and were able to identify some of his assailants. The applicant said that three of the people were identified and they were people that he knew who lived in a nearby town. He said that their names were given to the police and his wife later made a complaint on his behalf. The applicant was admitted to hospital and the police interviewed him when he was there.
The applicant was asked if he knew why these people had attacked him. The applicant said that he did not know but he believes there may have been two different reasons to explain why he was attacked.
The first explanation was that he knew the three assailants were associated with the United National Party. He had been supporting a candidate of the opposition party, the People’s Freedom Alliance, in the 2015 general elections. When asked why he would be targeted some nine months after the election, the applicant said that he may have been identified as an important person because he had taken an active role in putting up posters and organising small meetings in his village. He said that these people may have been waiting for him. According to the applicant, this is what happened in Sri Lanka when there were elections - “there was a lot of violence”.
I make the following observations about this evidence.
First, it seems implausible that these men would wait for nine months to attack the applicant in the circumstances described by him. Even if it is accepted that the applicant supported a candidate of the Sri Lankan People’s Freedom Alliance, the applicant did not have a formal role in the party and could hardly be described as high-profile or important. It is difficult to understand why the applicant would be singled out such a long time after the election.
Secondly, the applicant did not provide this detail to the delegate. The only information provided to the Department and the delegate was in the application when he said that he believed he had been attacked because of his “political beliefs”. He did not refer to this in his statement dated 14 March 2017 and in his first handwritten statement provided on 30 September 2021 he stated that he “believed” he was attacked by 10 people because of his “support for a political party”. He did not name the party or identify the support that he provided. In his second handwritten letter dated 22 October 2021, he provided a little more detail, namely that he “believed” the attack was politically motivated because a month earlier he had been working to help the campaign for the losing political party. As with the previous letter he did not provide details of the political party or set out the details about the campaign, other than stating that it was a month before the attack, which is, in any event, incorrect because the general election was held in August 2015.[3]
[3] DFAT report 2015
Even though the applicant was not interviewed, the delegate made several attempts to obtain information from the applicant about his claims. Notably, this correspondence proceeded through the applicant’s lawyer and migration agent. The applicant’s failure to provide a response to this request for information that addressed the issues raised is a matter of concern and for this reason it is apt to set out in some detail the nature of the information requested, the responses provided and a brief chronology of the decision-making process more generally.
The applicant was originally offered a telephone interview in May 2020 which he declined pending the possibility of an interview in person once the issues relating to the COVID-19 pandemic had resolved. The COVID-19 pandemic issues continued during 2020, 2021 and the commencement of 2022. This is a matter of public record. As such, the applicant was not offered an in-person interview during this period, and it is apparent from the correspondence in the Department file that he was not again offered the opportunity of a telephone interview. Instead, the delegate corresponded with him, through his migration agent, between 7 September 2021 and 20 October 2021.
In the letter from the delegate dated 7 September 2021, it was observed that the applicant’s statement of claims lacked detail. The applicant was specifically asked to provide details about his political beliefs, his past political activities, a detailed account of the assault and how the assault related to his political activities. He was also asked to provide details regarding the lodgement of a case with the police by his wife (as she then was) including copies of any paperwork from the police. The applicant provided the handwritten statement referred to above which did not include any details relating to these matters. The applicant did not provide, nor did his lawyer provide, a copy of the statement from his former wife said to be made to the police in 2017, although his lawyers did request an extension of time to produce any documents.
By letter dated 30 September 2021, the applicant’s lawyers advised that the applicant was in a correctional centre in [Australia] and was unable to gain access to his apartment where the supporting documents were said to be located. It was noted that the applicant was due for release in [2021]. In a response on the same day, the delegate noted that while the applicant had a bridging visa, consideration was being given to its cancellation. The delegate observed that if the visa was cancelled, it was unlikely he would be able to get access to his apartment, requesting details of what documents were to be obtained and how those documents were relevant to his claims. The applicant’s lawyer responded by email dated 13 October 2021 that the contents of the letter of 30 September 2021 had been passed on to the applicant, but he had not provided any instructions. By email dated 15 October 2021, the applicant’s lawyers provided a handwritten letter from the applicant stating that he had “more documents” to provide to the Department but needed time to do this because he was in a correctional centre. He asked for an extension until 30 November 2021. This letter did not detail what documents he would be providing and how they were relevant to his claims.
By email to the applicant’s lawyers dated 20 October 2021, the delegate noted that the responses from the applicant did not address any of the requests for comment or the questions posed in the letter of 7 September 2021. It was also observed that the fact the applicant did not have access to, what the delegate referred to as “unspecified documents”, would not preclude him from providing those responses. The delegate stated that he would hold off making a decision on the application until after 24 October 2021 and after this time he would proceed to make a decision with the information that was before him.
The applicant was questioned about this at the hearing. He said that he was aware of the request made by the delegate in the letter of 7 September 2021 but when he prepared his letters in response, his main concern was to obtain documents supporting the claim about the criminal complaints and the court cases. He also thought he would be able to explain the position in an interview. While I accept the applicant wanted an opportunity to be interviewed by the delegate, the letter stated as follows:
Please note that a decision on your application may be made on the information in your application and on any response to this letter, and you may not be given another opportunity to provide more information about your claims.
Following the correspondence between the applicant’s lawyers and the delegate, the delegate wrote to the applicant’s lawyers by email dated 20 October 2021 in the terms set out above and stated that a decision would be made based on the information before him as at 24 October 2021.
It is not the role of the Tribunal to determine whether the decision-making process adopted by the delegate was fair or unfair in the circumstances of this case. The Tribunal review is based on the merits of the case which must be considered afresh based on the available information. However, information provided by an applicant in response to a request for details about protection claims will be a relevant matter to take into account. As observed by the delegate in his decision, the applicant could have set out details about why he believed the attack was politically motivated in his handwritten statement. He was asked by the delegate to address this on several occasions but did not do so. When this was raised with the applicant at the hearing, he said that he “did the best he could” and his advisor said that he should respond in his own words but did not give any him any guidance about the level of detail that was required. It is for an applicant to satisfy a decision-maker about his or her claims for protection.[4] This was the applicant’s opportunity to provide more details and the fact that he provided so little additional information raises concerns about the veracity of these claims. He did not do so, and the information provided was vague and general in nature.
[4] s 5AAA of the Act.

Thirdly, it is apparent from the applicant’s use of the word believed in his handwritten statements, confirmed in his oral evidence at the hearing that he was speculating about why he was attacked. Firstly, he said that he believed it was politically motivated and when asked to provide more details of this, he offered an alternative explanation.
The second explanation given by the applicant related to his involvement in a business in 2014, 2015 and 2016 where the business owner incurred gambling debts and the business had collapsed owing a significant amount of money. According to the applicant, the business owner moved overseas without repaying the debts and the applicant was concerned that creditors might have been pursuing him, wrongly believing that he was liable for the debts. When asked how the three people he had identified as assailants were involved, he said that these three people were not associated with the business as creditors but had associations with the creditors who may have incited the three assailants to take action against him. The applicant went into considerable detail about the business arrangements, the former business owner and the debts. This is not an issue raised by the applicant in any previous statements or in his written claims, nor did he say that he had received threats relating to these business debts prior to the attack.
The applicant said that the three assailants had been charged by police and that the case was pending before the courts. He said that a further two assailants, who he did not know, had also been charged. The applicant said that all defendants denied the charges against them and that as far as he was aware the case had not yet been finalised.
The applicant was asked why he believed he would still be threatened if he returned to Sri Lanka and he said that people had visited his house in 2017, threatened his former wife and mother and they had come in camouflage. He said that these people told his former wife and mother that they would come back to find him. He also said that he does not have any confidence in the Sri Lankan police and the legal system. He was asked whether there were any recent threats and he said that threats were still being made to his mother about him. The applicant was not specific in this regard but said that he would not be able to relocate because he believed the assailants would eventually find him.
When asked if he could identify the three assailants, the applicant read the names from a document which he said was a statement from his former wife in the Sinhalese language. He said this had been provided to the delegate, but it was not in the Department file, was not referred to in the decision record of the delegate and was not provided to the Tribunal.
As already noted, at the commencement of the hearing the applicant said he had a further statement from his former wife which he believed supported his claims and which he believed was provided by him to his lawyers in 2019. This statement was not in the Department file and there is no record of the statement being provided by the applicant’s former lawyers to the Tribunal.
The document purports to be an extract from the Information Book of the [Police] Station. It is dated 20 October 2017; its date of issue is said to be 17 October 2018 and it is headed “DEATH THREATS”. The statement is said to be from the applicant’s former wife, [Mrs A], and refers to the assault on the applicant. It notes that after the applicant came home from the hospital, “death threats continued” and because of these death threats the applicant went abroad. It is also stated that the applicant’s former wife continued to live with the applicant’s mother and grandmother and while she was living there, she was threatened over the phone and told that if she did not “produce [the applicant] from hiding” she would not be allowed to live with the applicant. The statement also recorded that several unidentified people came to the house. Their faces were covered. According to the statement, one of the people came near to the applicant’s former wife and his mother and threatened them, holding a knife in her direction, threatening her to leave the applicant. The house was searched and the applicant’s former wife told the people who came to the door that the applicant had gone abroad. They continued to threaten her and told her that if the applicant was not “produced” to them, she would be killed. According to the statement, the applicant “did political affairs for the prior governments” and the people who visited the house threatened that the applicant would not be able to do those “political affairs” again. This statement is said to be the basis for the complaint by the applicant’s former wife to the police.
It is difficult to test the veracity of this document. DFAT assesses the document fraud is common in Sri Lanka.[5] According to DFAT:
Attempts to use fraudulent documents are common and DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual’s financial situation. Other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports several years ago of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.[6]
[5] DFAT Report at [5.45].
[6] Ibid [5.44].
According to the applicant, his former wife is not available to give evidence about the statement or its contents. It is also difficult to understand why such a relevant document, which was purportedly in existence as at October 2018, was not provided to the delegate or to the Tribunal until the hearing. The applicant’s evidence that he gave it to his lawyers in 2019 cannot be substantiated.
I raised concerns with the applicant about the statement and asked him to explain how he had obtained this statement and why it was not provided earlier. He said that his lawyer had provided the document to him recently because he would no longer be representing him. This response is not only confusing, but it is not consistent with the correspondence between the delegate the applicant’s lawyers during September and October 2021. The applicant and his lawyers requested further time to provide documents because the applicant could not access his apartment. The applicant’s bridging visa was cancelled and he was moved into immigration detention directly from the correctional centre. His explanation of how he obtained the statement was that it was sent to him by his lawyers, although he also said that he had given this statement to his lawyers in 2019. He later said the statement had been sent to him by his mother through the post. While this evidence is confusing, when asked why this document had not been provided earlier, the applicant repeated on several occasions that this statement had been given to his lawyers 2019 and that he could not explain why it was not provided to the delegate, he thought it had been.
Regardless of how this document came into existence, in respect of which I am unable to make any findings about based on the available evidence, I am not satisfied that this document was provided to his lawyers in 2019. It is inexplicable that his lawyers would fail to provide this document to the delegate if it was in their possession at the time that the delegate requested further information from the applicant. The request was clear, the applicant’s lawyers requested an extension of time to provide further documents and if they had such a document in their position that had been given to them by the applicant in 2019, is difficult to understand why they would not have provided this document to the delegate. The only other explanation is that they were negligent and forgot about the document and therefore did not provided in response to the delegate’s requests for further information. Given the repeated efforts of the delegate to obtain this information and the responses of the applicant’s lawyers, this possibility seems implausible.
The inconsistencies about the existence of this document and why it was not provided to the delegate or the Tribunal raises concerns about whether a document was in existence at the time it is was said to have been issued, whether the applicant gave this document to his lawyers in 2019 or whether the document has recently come into existence and is contrived.
I have a number of additional concerns about this document and its contents. The statement does not make clear, nor does the applicant provide any plausible explanation, as to why the people who made threats to the applicant’s former wife would be so committed to pursue the applicant in circumstances where his engagement with “political affairs” as described by him was both low level and isolated to the national election in August 2015. The reaction of the unknown assailants as recounted in the statement would seem to be disproportionate to the applicant’s alleged role in promoting a candidate in the 2015 general elections. If there is some other explanation for why these people were seeking out the applicant and went through the process of threatening the applicant’s former wife and his mother, the applicant has not provided any evidence about it.
A further issue is that the contents of the statement are inconsistent with the evidence given by the applicant at the hearing about his explanation for why he was attacked. When the applicant was asked, he said there could be two reasons, one being his political activities, the other relating to his business activities. This statement only refers to the applicant’s alleged “political affairs” and is unequivocal that this was the reason for the attack and threats. The statement goes so far as to note that the assailants said to the applicant’s former wife that he would not be able to undertake his political activities on his return to Sri Lanka.
These matters raise concerns about whether the statement is contrived.
I raised these matters with the applicant at the first hearing and asked whether the applicant’s former wife was available to be questioned about its content. The applicant said that he did not know whether she would be available to give evidence, although he said his mother would be available. Given the applicant’s former wife is the alleged author of the statement, I indicated a preference for her to give evidence rather than the applicant’s mother.
At the commencement of the second hearing, the applicant advised that he had not been able to contact his former wife to give evidence about the statement. He said that this statement was not from her but was a statement from the police. This is not correct. The document purports to be translated statement given to police by his former wife. However, I accept the applicant may have misunderstood the nature of this document and therefore do not draw any negative inferences about this. The applicant was again questioned as to how he obtained the statement. He said that his mother provided the statement to him and she sent it to him through the post. He also said that he did not have a telephone number for his former wife and she could not be contacted.
The applicant was also questioned about the further statements provided by him after the first hearing.
The letter said to be from the family [doctor], is dated 8 December 2021 and is in English. It states that [doctor] is the family physician and has known the applicant since childhood. He writes that the applicant had death threats from a gang of people and that he treated the applicant for multiple injuries following his assault in 2016. The letter further states as follows:
This person is not an (sic) aggressive and had a peaceful life while in Sri Lanka. His mother is living in Sri Lanka along (sic) and if this person comes to Sri Lanka his life is at risk. So it is my sincere request from the responsible authority to allow him to live in Australia for the rest of his life.
The second letter is said to be from [an] attorney-at-law and notary public. The letter is dated 13 December 2021, is in English and is addressed “to whom it may concern”. This letter is nearly identical to the letter said to be from the family doctor, but states that [he] provided legal advice to the applicant following the assault in 2016. The letter is on a letterhead for [the attorney] and the letterhead states that he is an “Attorney-at-Low, Unofficial Magistrate Notary Public and Commissioner for Oaths”.
The applicant was asked how he came into possession of these documents. He said that his mother had emailed them to him. The applicant was asked to explain why the letters were almost identical. He was also asked to explain why the spelling on the letterhead of the lawyer was incorrect. The applicant could not explain either of these matters and in response to the question about whether these documents were genuine, the applicant’s response was vague. He said that he did not know how this came about.
I have concerns about whether these documents are genuine but ultimately this does not matter because neither of the letters contain evidence that addresses the issue about whether threats were made against the applicant after he left Sri Lanka and whether he will be targeted on his return by the people who attacked him in June 2016, or others associated with those people. Both letters speak of the assault in June 2016, which I accept. Both letters make an unsubstantiated assertion that the applicant’s life would be at risk if he returns to Sri Lanka. These assertions carry no weight because they do not set out the basis on which the author has formed this view.
The applicant also provided a typewritten statement in English, from his [mother]. The statement is dated 26 January 2022. It states that the applicant was brutally beaten by an unidentified group. He was later admitted to hospital and received treatment and they lodged a complaint with police. Some of the attackers were identified with the assistance of a group of bystanders but fearing for her son’s life, she left her home and moved to a house in another area. It is further stated that the applicant received anonymous calls to his phone and that he moved to stay with a friend until his departure to Australia. She writes that they do not currently know the reason for the attack but her son was involved in politics in 2015 when a party he supported was defeated in the election. It is also stated that the applicant’s mother received anonymous telephone calls before the attack. She also sets out the details of the business that her son worked in before the incident and the fact that the business went bankrupt. She notes that the applicant told her he had to pay a lot of money for the business after the owner left the country and that the owner had made pledges, presumably meaning promises, that the applicant would pay the money to various creditors. It is noted that creditors came looking for her son and that her son was pressured to pay the money or to find the business owner. It is further noted that it is “doubtful whether these people also tried to beat the (sic) son to death”. According to the statement, an unknown group came to the house where they were staying after the applicant had travelled to Australia. They threatened the applicant’s mother and asked the whereabouts of the applicant. This incident was reported to police. The applicant’s mother said she was concerned about her son’s safety in Sri Lanka and asked that he be allowed to live in Australia.
The applicant’s mother gave evidence by telephone at the second hearing with the assistance of an interpreter. She said that she was living with friends. She was asked about the last time she had contact with the applicant’s former wife. She said that this was about six months ago. She does not have a telephone number for her and has no way to contact her. The applicant’s mother was asked to explain why she feared that her son would be at risk of harm if he returns to Sri Lanka. She said that she was getting telephone calls from people who are asking her about her son. The last call was about eight months ago but she did not always answer telephone calls because of concerns about threats. She had reported this to the police and they asked her to keep the same mobile number so that they could trace the calls. She does not know how these people obtained her number but believes they have had it “from the very beginning”. She has been asked where her son is, whether he is living in Sri Lanka and whether she is hiding her son. The applicant’s mother said that she received a telephone call in about November last year but did not answer the phone. She believes this was a telephone call from the people who had been threatening her because it was a private number.
In her statement, the applicant’s mother stated that she had received anonymous telephone calls prior to her son’s attack in June 2016. She did not state what those telephone calls were about but set out some of the difficulties that her son had encountered when the business he had been working in went bankrupt. She stated that her son told her he had to pay a lot of money for debts. She also stated that people came to the home looking for the applicant and that “telephone calls were made”.
The applicant’s mother was asked about this at the second hearing. She said that there had been telephone calls in 2015 and 2017 by anonymous callers. She said that in the 2017 telephone calls, the anonymous callers asked her where her son was and told her that she should give her son to them. She did not give evidence that threats had been made before her son was attacked but said that the callers were looking for her son. When asked if she knew why they wanted to find her son, she said that he had been working with a [company] from 2014 to 2016 and after this he was working in political activities.
When asked what these political activities were, the applicant’s mother said that he was doing publicity for one of the political parties, being the current party that was in power. The applicant’s mother was asked to describe what happened when the people came to her house in 2017. She said that she was living at her mother’s house with the applicant’s former wife. She said that about three people came to the house but there were others outside. She could not see their faces as they wore facemasks. They told the applicant’s mother and former wife to sit down, they searched the house and threatened them with knives and pistols. After searching the house and threatening them they left the house and said to the applicant’s mother and former wife that they could not keep hiding the applicant. She said that she and the applicant’s former wife told the intruders that the applicant was abroad. This incident was about 20 minutes in duration. The applicant’s mother and former wife reported the matter to the police and the police took down the information and said that they would investigate. The police said that if the people returned, they should report the matter again. According to the applicant’s mother, the people did not return after this incident.
When asked what action the police took, the applicant’s mother said that they came to the house to take a statement from the applicant’s former wife. They did not take any fingerprints and did not take a statement from her. The applicant’s mother said that Sri Lankan police take a long time to investigate matters, but they had heard no further from the police and after her daughter-in-law moved out. She did not pursue the matter. The applicant’s former wife left the house in about 2019. When asked why she did not pursue this with police given the serious and violent nature of the threats, the applicant’s mother said that she was alone, she did not believe she could pursue it and she was afraid what would happen to her.

The applicant’s mother was asked what she meant when she said in her statement that it was “doubtful” that the business creditors had tried to beat her son. It appears this was an imprecise translation of her words because it was clear from her evidence that she thought it was possible this could be the reason for the attack. The applicant’s mother said that she remains concerned for his safety if he returns to Sri Lank and she did not have the money.
Prior to the second hearing, the applicant was provided with country information, including the DFAT Report and the Performance Report for 2019 for the Sri Lanka Police.[7] According to this latter report, the Sri Lanka Police had a budget of Sri Lankan rupee 76 billion for 2019, which is equivalent to approximately AUD $500 million. DFAT notes that Sri Lanka has no laws of government policies that hinder access to state protection on the basis of religion or ethnicity (relevantly the applicant does not make a claim on this basis) and “all citizens have access to avenues of redress through the police, judiciary and the HRCSL” (at [5.1]).[8]
[7] Performance Report 2019 - Sri Lanka Police, Government of Sri Lanka, 2019, 20210506131815.
[8] The HRCSL is the Human Rights Commission of Sri Lanka.
The applicant was asked why he would be harmed, why he did not believe he could be protected by police or why he could not relocate. He said that Sri Lanka is a small country, and the police are corrupt. He has no confidence in the system or that he would be protected.
FINDINGS OF FACT
Like the delegate, I accept that the applicant was attacked and injured on 3 June 2016. There is evidence to corroborate this, including medical reports from the hospital in [Village]. The delegate found that the attack was random and was not satisfied it was politically motivated. I am also not satisfied based on the evidence provided by the applicant that the attack was politically motivated.
The evidence provided by the applicant to the Department and to the delegate about his claims in this regard was vague and lacking in detail. He stated that he supported the losing party during the elections in 2015 but provided no further detail about the nature of the support that he gave or about his role in the party. He did not even refer to the name of the party in his evidence but referred to it as the “losing party”. The applicant was requested by the delegate in writing to provide further detail, but he failed to do so. Relevantly, the applicant was receiving assistance from a lawyer and registered migration agent at that time.
The evidence the applicant gave at the hearings before me was more detailed but when questioned about critical issues, such as the reason for the attack and his alleged political activities, his evidence was both vague and speculative. He gave a detailed account of how the attack occurred and the circumstances surrounding the attack. This evidence was persuasive and credible. However, when given the opportunity to explain why he was targeted and why he would be targeted if he returned to Sri Lanka, the applicant’s evidence was unconvincing. He could not explain why three people who supported the United National Party would attack him so violently after nine months. He did not provide any specific details about any previous threats that had been made or details about past political activities undertaken for the People’s Freedom Alliance, other than those undertaken at the time of the 2015 elections. It is clear from his evidence that his conclusions about this were speculative, in fact he said he did not know and “assumed” this was the reason.
The second explanation given by the applicant for the attack included an account of the background leading to the business problems with an explanation about how debts were incurred and the issues that arose in relation to those debts. He said that a possible explanation is that the assailants were either creditors or knew creditors and were acting on their behalf. This issue was raised for the first time during the first hearing. It is plausible that the applicant was involved in a business that failed and that the business owner left Sri Lanka leaving dissatisfied creditors. It is also plausible that creditors of the business may have contacted him prior to him leaving Sri Lanka asking to be paid, holding him responsible because the business owner was no longer in the country. What is not plausible is that those creditors (or associates) would threaten him, beat him and threaten his former wife and mother just over six months after he left Sri Lanka. This issue was raised by the applicant for the first time during the hearing and his mother’s evidence about this issue was vague and lacking in detail. I do not accept this claim.

100. The applicant claims to fear harm because threats were made against him and people came looking for him after he left Sri Lanka. The evidence about these threats is contained in a statement said to have been made by the applicant’s former wife to the police. The difficulty with this is that the statement of his former wife cannot be substantiated. It is also relevant to note that the statement does not refer to threats being made by creditors or former creditors or associates of creditors of the partnership business.
101. This statement is important because it is said to support the applicant’s contention that he was targeted for his political beliefs when he was attacked in June 2016 and that he will be targeted in the future said to be evidenced by the fact that his protagonists also threatened his former wife and mother over a year later. This claim is not credible. The applicant’s account of his involvement in politics was confined to undertaking some publicity for a candidate at the national election in 2015. He has not described in any further detail the extent of his political activities other than putting up posters and organising town meetings for the candidate at the time. He did not provide any of this detail to the delegate in his statements or in his written correspondence. All he said in his statement was that he was that he supported the losing party.
102. I am not satisfied that the statement provided by the applicant said to be from his former wife is genuine. The applicant’s former wife is not available to give evidence and the veracity of the statement cannot be tested. The circumstances surrounding the late production of this statement to the Tribunal raises concerns and the statement contains information that is inconsistent with the applicant’s own evidence. In the statement it is noted that the intruders threatened that the applicant would not be able to undertake “political affairs” in Sri Lanka again. However, when the applicant gave evidence at the hearing, he was not entirely sure about why he had been beaten and offered alternative explanations. The statement alleged to be from his former wife makes it clear that the threats from the intruders were about the applicant’s political activities. If this statement was genuine, it is difficult to understand why the applicant was speculating about the reason for the attack when he gave his oral evidence.
103. The statement alleged to be authored by his former wife referred to the applicant’s political activities in general terms. This is similar to the reference made by his mother in her statement. When asked about why he may have been targeted, the applicant said that he would have been considered “important”. The activities described by the applicant here in his evidence do not support this characterisation of his role.
104. DFAT notes that large-scale violence and vote rigging have never been features of elections, although it is further noted that elections have not always been described as entirely free and fair.[9] The national elections in August 2015 were close, resulting in the United National Party winning a majority over the Rajapaksa government which had spent many years in power. The Presidential elections were held in January 2015 and, according to DFAT, the Presidential election was relatively peaceful and orderly and the Parliamentary election held in August 2015 was described as credible.[10] DFAT does not report on violence or reprisals following these elections. As such, the available country information does not suggest that political tensions between the opposing political parties in 2015 was such that people supporting the United National Party at that time would attack the applicant a year after the elections, where their party was successful, and continue with reprisals and threats over two years after the national election.
[9] DFAT Report December 2021 at [3.38].
[10] DFAT Report 18 December 2015 at [3.26].
105. The applicant’s mother gave evidence about anonymous telephone calls that both she and the applicant had received. Her account of what happened when the intruders came to her house is consistent with the statement said to been provided by the applicant’s former wife, with one important exception. The statement from the applicant’s former wife did not refer to being threatened by pistols and referred only to being threatened by knives. This represents a significant difference between the evidence in the statement and the evidence of the applicant’s mother.
106. Having regard to all the evidence relating to this matter, I am not satisfied that the account given by the applicant’s mother is credible. The alleged incident was violent. It is difficult to understand why the police would not take a statement from the applicant’s mother and why they would fail to follow up the investigation with some action. The applicant also raised concerns about whether the police would act and said they were corrupt.
107. According to DFAT, there is corruption in the public service at senior levels, but corruption does not affect the lives of ordinary people. Petty corruption exists, such as bribes being paid by parents for their children to attend a good school. It is also noted that Sri Lanka has a large and inefficient public service where personal connections mean that regulations are bypassed. DFAT notes that police officers are not well paid and individual officers reportedly engage in petty corruption, such as taking bribes instead of issuing traffic fines, to supplement their incomes.[11] However, DFAT does not report corruption by police at such a level that they would fail to follow up a serious reported violent crime. DFAT notes that there is an independent judiciary, but it is overburdened, and lengthy legal procedures lead to long delays.[12]
[11] DFAT Report at [2.11] to [2.12].
[12] Ibid at [5.8].
108. I therefore accept there may be delays and inefficiencies in law enforcement investigations and prosecutions but the DFAT report suggests that Sri Lanka has a relatively functional police force and judiciary, albeit under-resourced
109. While I accept that Sri Lankan police may be under resourced, this incident cannot be described as low-level or even only moderately serious. It is a very serious criminal offence for two women to be threatened with knives and pistols. The available country information suggests that Sri Lanka has an active police force and an active judiciary. It is implausible and certainly not supported by country information that the police would just refuse or fail to act. Yet this is the only conclusion that can be drawn from the evidence of both the applicant and the applicant’s mother. This undermines the evidence of the applicant’s mother about these matters.
110. I accept that the applicant was attacked in June 2016. I do not accept that that the attack on the applicant was politically motivated or that he was targeted for attack because of his political activities. I accept that the applicant may have been contacted from time to time by creditors of the failed business, but I am not satisfied that creditors or associates of the creditors targeted him for the attack in June 2016. This issue was raised for the first time by the applicant during the hearing. In every other document provided to the Department and to the delegate, the applicant had indicated that he believed the attack was politically motivated. If the applicant had been previously threatened or targeted by creditors or associates of the creditors prior to his attack, this would be a highly relevant matter to raise in his application and in the evidence that he put before the delegate. He did not do so. The applicant has not explained why this issue was not previously raised and, as such, I draw a negative inference about the credibility of this claim pursuant to s 423A of the Act.
111. The delegate concluded that the attack was a random attack and, in the absence of any further evidence supporting a claim that the applicant was specifically targeted, I also find that the attack was more likely than not to have been random. The fact that the applicant knew three of the assailants and that they were from a nearby village does not of itself suggests that he was targeted. It would not be uncommon for people from neighbouring villages to know each other.
112. In summary, I am satisfied that the applicant was attacked in June 2016, but I am not satisfied that the attack was politically motivated or that he was otherwise specifically targeted. Nor am I satisfied on the basis of the evidence before me that there are ongoing threats or that the applicant will be threatened or targeted on his return. These events took place nearly 7 years ago. I reject the claims that the applicant’s mother and formal wife were threatened in the home in 2017. I therefore reject the applicant’s claims that he faces a real chance or real risk of harm on his return to Sri Lanka by reason of the claims that he has made.
CONSIDERATION OF CLAIMS AND EVIDENCE
113. The issue in this case is whether the applicant meets the refugee criteria, namely whether he is a refugee as defined in the Act because he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. If the applicant does not meet the refugee criterion, I must nonetheless consider whether he meets the complementary protection criterion.
114. Both these issues turn on the question of whether I accept his claims about what he said happened to him in Sri Lanka in 2016, whether I accept the applicant’s claims about the reasons why he was attacked, whether I accept his claims about threats made after he left Sri Lanka and, importantly, whether I am satisfied that there is a real chance or real risk of him sustaining serious or significant harm on his return to Sri Lanka. These questions turn on the credibility of the applicant’s claims.
Is the applicant 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.

117. The criterion in s 5J(1)(a) 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.
118. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

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.

121. 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.
122. For the reasons set out in my findings, I am not satisfied that the applicant faces a real chance of serious harm on his return to Sri Lanka by reason of his political opinion, or for any other reason. While I am satisfied that the applicant was attacked in June 2016, I am not satisfied that this was a targeted attack by reason of his very limited “political activities” or because of his previous business activities. Nor am I satisfied that there have been threats made against him and members of his family by masked intruders after he left Sri Lanka or that he will be threatened or harmed on his return by these alleged assailants. Accordingly, I am not satisfied that there is a real chance that the applicant will face serious harm if he returns to Sri Lanka.
123. It therefore follows that I am not satisfied the applicant is a refugee and person in respect of whom Australia has protection obligations under s 36(2)(a).
Does Australia have an obligation to the applicant under the complementary protection criterion?

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).

125. The question is whether there are 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 the person claiming protection will suffer significant harm.

‘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.

127. For the reasons set out above, I am not satisfied that there are substantial grounds for believing that the applicant faces a real risk of significant harm on his return to Sri Lanka. In summary, while I am satisfied that the applicant was attacked in June 2016, I am not satisfied that this was a targeted attack by reason of his very limited “political activities” or because of his previous business activities. I not satisfied that there have been threats made against him and members of his family by masked intruders after he left Sri Lanka or that he will be threatened or harmed on his return by these alleged assailants. Accordingly, I am not satisfied that there is a real risk that the applicant will face significant harm if he returns to Sri Lanka.
128. A claim that has not been expressly made by the applicant, which I will nonetheless consider, is whether he will face a real risk of significant harm on his return to Sri Lanka as a returning failed asylum seeker who has been deported or as a person who has been charged and served time for criminal offences in another country.
129. In this regard, it is relevant to note that the current DFAT Report sets out considerable detail about the exit and entry procedures for unsuccessful asylum seekers and the conditions for returnees. DFAT reports as follows:
5.17    Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights. In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration where they will be interviewed by the Chief Immigration Officer. Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies including CID, Sri Lankan State Intelligence Service (SIS) and Sri Lankan Navy Intelligence (SLNI). These agencies check travel documents and identity information against the immigration databases, intelligence databases and records of outstanding criminal matters. Those who have departed illegally will be referred to CID at the airport and charged accordingly. Once charged they are taken to the courts at Negombo where they are bailed and released.
5.18    DFAT is not aware of returnees in 2021 being detained for matters other than illegal departure (such as, for former membership of the LTTE). However, due to COVID-19, returnees have been returned to Sri Lanka in smaller numbers overall than in previous years. According to the IOM, in 2021 up to September, there had been 107 returnees, 19 of these from Australia. Local sources also report that Tamils overseas are much less likely to return voluntarily to Sri Lanka under the current Government.
5.19    The IOM meets Australian-assisted voluntary returnees (i.e. not deportees) after immigration clearance at the airport and provides some cash and onward transportation assistance, along with legal assistance provided by the Sri Lankan Legal Aid Commission for those charged with illegal departure. Prior to departure from Australia, Australian Border Force provides removed returnees with cash to assist their return.
5.20    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity. This would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.

130. DFAT also notes as follows:
5.27    Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country. Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia. Many others returned from the US, Canada, the UK and other European countries. Most returnees are Tamil. Although individual experiences vary, many Tamil returnees choose to return to the north, either because it is their place of origin and they have existing family links, or because of the relatively lower cost of living compared to the south.
5.28    Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. Most returnees have incurred significant expenses or debt to undertake their outward journey. Some voluntary returnees receive reintegration assistance in the form of transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal. Failed asylum seekers receive limited reintegration assistance. Many returnees have difficulty finding suitable employment and reliable housing on return. Those who have skills that are in high demand in the labour market are best placed to find well-paid employment. The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.
…………………………..
5.30    ….DFAT understands that returnees may face financial difficulties reintegrating into their communities, including due to sale of their belongings to fund irregular ventures overseas, but do not experience societal discrimination for seeking asylum elsewhere.

131. The applicant did not leave Sri Lanka illegally, he is not a Tamil and there is no evidence that he is being investigated for criminal offences committed in Sri Lanka before he left. It is possible that he may be interviewed at the airport given his criminal history in Australia, but he has served his sentence and there is no country information in the DFAT report to suggest a returning citizen in his circumstances would be monitored or kept under surveillance such that he would face a real risk of significant harm defined n s 36(2A) of the Act. Relevantly, DFAT reports that it is not aware of detainees being subjected to mistreatment during processing at the airport (refer at [5.20]).
132. I accept that the applicant may find it difficult to adjust or to find employment on his return to Sri Lanka, but this does not amount to “significant harm” for the purposes of s 36(2A) of the Act.
133. In brief, I am not satisfied that the potential challenges the applicant faces on his return to Sri Lanka could be characterised as significant harm within the meaning of the Act.
134. It is also relevant to note that the fact that the applicant may be separated from his wife if he returns to Sri Lanka is not a matter that would engage obligations under s 36(2)(aa) in the circumstances of this case. This is because separation from family or friends in Australia and any consequential psychological impact does not of itself enliven complementary protection obligations (refer SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 and GLD18 v Minister for Home Affairs [2020] FCAFC 2).
135. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Other criteria

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

137. The Tribunal affirms the decision not to grant the applicant a protection visa.
J.L Redfern PSM
Deputy President

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.
…

[2022] AATA 3160

3 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal