2116730 (Refugee)

2116730 (Refugee) [2024] AATA 4478 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Michelle Janine Gunaratne (MARN: 0958672)
CASE NUMBER:  2116730
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Catherine Wall
DATE:9 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 October 2024 at 11:23am
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – religion – Buddhism – race – Sinhalese – threats from unknown people in Sri Lanka – previous support for the Rajapaksa – association with Rajapaksa regime – been threatened in Sri Lanka as a result of her political associations is not credible – not satisfied that the applicant’s athletic ability and participation in Australian athletics activities constitutes an exceptional circumstance – not to refer her case to the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZTGM v MIBP (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old citizen of Sri Lanka. She arrived in Australia on[date] October 2016 and applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 2 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review and the representative attended the hearing.
CLAIMS AND EVIDENCE
The applicant made the following claims in the visa application:
Her ethnicity is Sinhalese and her religion is Buddhism. She grew up in [Town 1], Southern Province, Sri Lanka, and was a talented athlete. She joined [Organisation 1] in 1994 and was supported to pursue her athletic career by [Politician 1] who was the [Position 1] at that time.
[Politician 1] strongly supported her in her career and her athletics and she did well in both, however her success resulted in jealousy from other competitors.
She married in 2003 and her son was born in [year]. She continued her athletic activities and worked hard to support [Politician 1]’s campaign to be reinstated as [Position 2] of [Organisation 2].
When [Politician 1] retired from [Organisation 1] he joined the Rajapakse government and subsequently recruited the applicant for an administrative position in [Department 1]. She retired from [Organisation 1] in 2013 and continued her sporting activities. In 2015 she worked on the campaign to re-elect Mahinda Rajapaksa however he was unsuccessful and Mithripala Sirisena became president. Some time later [Politician 1] was detained on suspicion of corruption. The applicant received anonymous threats claiming that she would be detained next. Upon [Politician 1]’s release he warned her to be careful and not disclose any information. She tried hiding but decided that she needed to leave the country.
In 2016 she was given the opportunity to participate in [Event 1] in [Australia] and she used this opportunity to remain in Australia and seek protection. She believes that she cannot return to Sri Lanka as the Criminal Investigation Department of the Police Service (CID) is very powerful and is supported by the Mithripala government which has a vendetta against the former Rajapaksa leaders. She will be caught and tortured if she returns to Sri Lanka as political influence has power over justice and corruption is widespread.
The delegate’s decision
The delegate’s decision was provided to the Tribunal by the applicant for the purpose of review. The delegate accepted that the applicant worked closely with and supported [Politician 1] and that she was a supporter of the Rajapaksa government between 2005 and 2015. The decision records that, when asked why she was unable to return to Sri Lanka given the reinstatement of the Rajapaksa government in 2019, the applicant claimed that there are politicians within the Rajakpaska government who are not happy with her.
The delegate’s decision records, relevantly, that the applicant claimed that:
oOther people were resentful of the applicant’s athletic success and relationship with [Politician 1] and because of this she received threats from people she did not know at the athletics field and via phone.
oAfter she left Sri Lanka her husband and son received abusive calls from unknown callers who told them to ask the applicant to return to Sri Lanka.
oShe cannot relocate in Sri Lanka as [Organisation 2] has connections across the country.
oShe does not wish to return to Sri Lanka as her son in clever at sport and she would like to bring her son to Australia as she is sad without her son.
The delegate was not satisfied that the applicant would face treatment amounting to serious harm or significant harm because of threats from unknown people in Sri Lanka, the unwillingness of the police to investigate her concerns, or her previous support for the Rajapaksa.
Evidence to the Tribunal
On the morning of the hearing the Tribunal received a statutory declaration from the applicant. She stated, relevantly that:
She was targeted and threatened in Sri Lanka because of her association with [Politician 1] and her involvement in the 2015 election campaign.
Sri Lanka has a new President who is vouching to bring those corrupt politicians to justice and she fears that she will be falsely accused and wrongfully detained for her association with Rajapaksa regime.
She is a talented athlete and cannot live in hiding. She lives a peaceful life in Australia, is involved in many athletic activities and volunteers training children and athletes.
The applicant submitted a number of media articles about Sri Lanka’s economic and political challenges and 2 articles which report [on developments related to investigating Politician 1]. All the media reports were published prior to the September 2024 election. She also provided a letter of support from [name] from [a] Club which attests to her active involvement in supporting and training athletes in Australia.
Post hearing the applicant submitted a number of certificates and other documents relating to her participation in athletic competitions in Sri Lanka and other countries, including her participation in Australia at [Event 1] in 2016.
Evidence at hearing
The applicant said that she is of Sinhalese ethnicity and is a practising Buddhist. Her parents are deceased and she has [siblings] in Sri Lanka. She has regular contact with her oldest sister who is unwell.
The applicant told the Tribunal that she is living in Melbourne with ‘fellow Sri Lankans’. She works as a [occupation] and does voluntary [work]. She is in good health. Her husband and [age]-year-old son remain living in [City 1] in the Western district of Sri Lanka. She has had regular contact with them but ‘not so much recently because of the elections in Sri Lanka’. When asked why the elections impacted on her communication with her family, the applicant said that she did not want to create ‘a difficult situation’. Her husband and son are not politically active and she said that they have not been approached or threatened since she left the country.
In relation to her activities in Sri Lanka, the applicant confirmed that she joined [Organisation 1] in 1994 and worked in the sports training area. [Politician 1] recruited her to [Organisation 1] because of her athletic abilities. She did not engage in any [non-sporting] activities at any time. [Politician 1] joined [Department 1] in 2013 and subsequently asked the applicant to provide administrative support to him. Initially she did this work while employed by [Organisation 1], and she continued the role when she left [Organisation 1]. She said that she was not paid a salary but her expenses were paid. She described her work as delivering paperwork to [Politician 1] for signing and travelling with him to sporting events. She said that she also attended some political events with him at the stadium and she met prominent politicians including the Rajapakshas. In 2015 she worked for the re-election of Mahinda Rajapaksha. I sought to clarify whether the applicant’s participation in political events was an expression of her political convictions or because of her loyalty to, and friendship with, [Politician 1]. She said that she was involved politically because of [Politician 1]’s involvement and she ‘went along’ with [his] personal connections which involved the Rajapakshas.
The Tribunal heard that [Politician 1] was arrested by the CID in early 2015. About one month after his arrest a man came to her house and threatened her. Her husband was home at the time and he reported the threat to the police. The applicant said that the police took no action because they supported the government. The applicant claimed that she was approached by men in public areas on 3 occasions. They told her to be careful. She did not know their names but thinks that they were aligned with President Sirensa. She said that she ran away from them and kept a low profile which meant she could not participate in some sporting activities. During the period January 2015 and October 2016, the applicant said that those threatening her never took any action to harm her and they never threatened her husband or son.
I noted that many things have changed in Sri Lanka since 2016, in particular the election of September 2024 which resulted in the leftist candidate Anura Kumara Dissanayake becoming President. I reminded the applicant that this has changed the political landscape significantly and the issue I must consider is whether she faces serious or significant harm if she returns to Sri Lanka now or in the foreseeable future. The applicant said that she will be harmed because the new government will start looking for people who supported the previous regime and [Politician 1]. I advised that my research about President Dissanayake does not reveal any statements or policies which suggest he is seeking to punish supporters of previous regimes. She said that people are saying things on Facebook and this scares her. When asked which specific people are making these claims, she named ‘[name]’ who is a person who hates [Politician 1]. She said he is not a politician and not in a position of power. I acknowledged that many people express personal opinions on Facebook and other social media, however these opinions are not indicative of government policy. She did not offer a response on this issue.
I advised the applicant that I had some concerns about her claims and would discuss these with her. Firstly, I said that I accepted her evidence that she had a close association with [Politician 1], that she participated in activities to elect the Rajapaksha government and therefore she was considered by others to be a supporter of the Rajapakshas. I told the applicant that I might consider that her profile was very low-level for the following reasons: she had an administrative position with [Politician 1] but did not hold office in any political party; she claims that she was threatened by unknown persons on 3-4 occasions but the threats were never followed up and she was never harmed; she was able to leave the country without difficulty in 2016; and her family members were not questioned or threatened after she left the country.
I also expressed concern that the applicant was very vague about who might harm her upon return to Sri Lanka and that her claimed source of harm has changed over time. I noted that:
o   at the time of the visa application she claimed that the Sirensa government would harm her because of her association with [Politician 1] and the Rajapaksha regime.
o   The delegate’s decision records that, when interviewed by the Department, the applicant was asked why she was unable to return to Sri Lanka given the reinstatement to power of the Rajapaksa government in 2019. The applicant claimed at that time that she faced harm from politicians in the Rajapaksa government who are not happy with her.
o   In her statutory declaration to the Tribunal dated 24 September 2024 the applicant said that the new president is ‘vouching to bring those corrupt politicians to justice’ and she would be questioned and wrongfully detained for close association with the Rajapaksa regime. She also claimed that she would be targeted by’ thugs’ from the Rajapaksa regime as they are being targeted for their corruption and crimes.
o   At the Tribunal hearing the applicant said that she feared harm from the new Dissanayake government.
In response the applicant said that the new President will not necessarily go after her, rather it is the people underneath him who might harm her because she supported [Politician 1]. When asked why she had claimed that politicians in the Rajapaksa government might harm her, she said that there were people in the former Rajapaksa who did not like [Politician 1].
In concluding comments the applicant told the Tribunal that she is very happy in Australia and is helping people and wants the opportunity to stay. Her representative stressed that the applicant is making a positive contribution to Australia and requested that, if the Tribunal is unable to make a decision favourable to the applicant, the Tribunal refer the case to the Minister for consideration on the basis that the applicant is an exceptional athlete.
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ASSESSMENT OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies the criteria as a refugee or satisfies the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant’s nationality is not an issue. She travelled to Australia on a valid Sri Lankan passport and has consistently stated in documentation that she is a national of Sri Lanka. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Sri Lanka and I have assessed her claims against Sri Lanka as her receiving country.
Country Information
Between 2005 and 2015 Sri Lanka was governed by the Mahinda Rajapaksa Presidency, a period of civil conflict and serious human rights violations as the Tamil Tigers fought government forces for Tamil statehood. In 2015 Maithripala Sirisena defeated Mahinda Rajapaksa in the January election, then in November 2019 Gotabaya Rajapaksa (younger brother of Mahinda) was elected president.[1]
[1] DFAT Country Information Report Sri Lanka. 2 May 2024.
A severe economic crisis in 2022 led to the replacement of Gotabaya Rajapaksa by Ranil Wickiremesinghe. He was succeeded by Mudiyanselage Anura Kumara Dissanayake who was elected President of Sri Lanka on 23 September 2024. President Dissanayake is the current party leader of the Janatha Vimukthi Peramuna (JVP) and the National People's Power (NPP). The BBC reported that Dissanayake’s policy platform was tough anti-corruption measures, bigger welfare schemes and reduced taxes.[2] According to a Guardian article of 26 September 2024, not everyone in Sri Lanka, and in particular the Tamil community, has greeted Dissanayake’s election with optimism. “Historically the JVP has been a staunchly Sinhala Buddhist party, seen to work against the rights of Tamils who live in the north and east of the island, where they face economic and military repression. The JVP was supportive of the brutal actions taken against Tamil separatists during the 26-year civil war and has resisted calls for investigations into the human rights abuses that took place in the conflict”.[3]
[2] Anura Kumara Dissanayake: Who is Sri Lanka’s new president? (bbc.com)
[3] Anura Kumara Dissanayake: who is Sri Lanka’s new leftist president? | Sri Lanka | The Guardian
DFAT reported in May 2024 that, while they no longer lead government, the Rajapaksas continue to wield political influence. [4] Their party (the SLPP) retains a majority in parliament, and President Wickremesinghe was appointed on the basis of the SLPP’s support. Mahinda, his son Namal Rajapaksa and older brother Chamal Rajapaksa remain MPs (Chamal is a former speaker of parliament and, like Namal, was a minister during Gotabaya’s Presidency). Gotabaya returned to Sri Lanka in September 2022, although is no longer formally involved in politics. Most current cabinet members are holdovers from the Gotabaya Ministry. In November 2023, the Supreme Court ruled that Gotabaya and Mahinda Rajapaksa, among others, were responsible for Sri Lanka’s economic collapse through their ’actions, omissions and conduct.’ The verdict carried no penalty other than to pay claimants’ legal fees.
[4] DFAT Country Information Report Sri Lanka. 2 May 2024 at 3.63-3.65

According to DFAT, in-country sources reported that people affiliated with established political parties faced a low risk of official or societal harassment. Politicians are well-connected and can better access state protection than the average person and may also have the means for private protection services.
No laws or policies discriminate on the basis of political opinion, and DFAT did not find evidence of systemic political discrimination against any particular group. DFAT assesses that political parties, including opposition parties, are able to operate freely and contest elections. Notwithstanding the targeted attacks against politicians associated with the ruling party in May 2022, DFAT assesses that both high and low ranking politicians and members of political parties face a low risk of violence. DFAT assesses that Tamil parties that espouse more radical views than moderate parties are more likely to have their activities monitored, although can generally operate freely.[5]
[5] DFAT Country Information Report Sri Lanka. 2 May 2024 at 3.65
I am mindful that President Dissanayake has assumed power since the publication of the last DFAT report. While his anti-corruption agenda is well documented, there is no indication in media or other reports that the new President has stated that he or his government intends to take action against supporters of previous regimes.
ASSESSMENT
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[6]
[6] (1999) 197 CLR 510.
On the basis of the applicant’s consistent and detailed oral and written evidence, supported by a number of documents relating to her sporting achievements while a member of the Sri Lankan [Organisation 1], I accept the following:
That the applicant is a Sri Lankan citizen of Sinhalese ethnicity and Buddhist religion.
That she was a talented athlete and was recruited to the Sri Lankan [Organisation 1] in 1994 by [Politician 1].
That she formed a close relationship with [Politician 1] who supported her career and her athletic abilities.
That she assumed an administrative support role for [Politician 1] in 2013.
That she participated in campaign activities to support the election of Mahinda Rajapaksa in 2015.
That she experienced resentment from others in the athletics community who were jealous of her athletic success and relationship with [Politician 1].
I accept that the applicant is settled and happy in Australia and does not wish to return to Sri Lanka. For the following reasons however I am not persuaded by her claim that she faces harm in Sri Lanka from other persons because of her past association with [Politician 1] and her support for the Rajapaksa regime.
Firstly, her claims about her potential persecutors in Sri Lanka are vague and have shifted over time. At the time of application, she claimed that that she would be harmed by members of the Sirisena government, at the time of her interview with the department she claimed that she would be harmed by certain people in the Rajapaksa government, and her evidence to the Tribunal is that she fears retribution from members of President Dissanayake’s government and from thugs in the former Rajapaksa regime. I find that the lack of specificity and the inconsistencies about who will harm her casts doubt on her claim that she fears harm due to her past political associations.
Secondly, the applicant’s claims about the threats she received are both vague and inconsistent. The delegate’s decision records that she referred to threats from unknown people at the athletics field and via phone because of jealousy, and that her husband and son received threats after she moved to Australia. At the Tribunal hearing the applicant said that an unknown person visited her home on one occasion and she was stopped and threatened in public spaces by unknown persons on 3 occasions. She did not mention any threatening phone calls. She also said that her husband and son were not approached or threatened after she left the country. I find that the applicant’s evidence has shifted over time yet remains vague about the identity of those who have threatened her and the reason for their threats. I find that her account of having been threatened in Sri Lanka as a result of her political associations is not credible.
Thirdly, the applicant was not a member of any political party, did not hold political office and did not have strong political convictions. Her evidence is that her political involvement was purely a result of her loyalty to [Politician 1]. She claims that she was threatened in 2015 but she remained in Sri Lanka for 18 months after the 2015 election and did not experience harm during this period. She said that she was ‘hiding’ after the threats and unable to participate in some sporting events, but her liberty and wellbeing was not otherwise affected.
Fourthly, the applicant was able to depart Sri Lanka legally in October 2016 without difficulty. This indicates that she did not have a significant profile with the Sri Lankan authorities. It is possible that she may be identified as a failed asylum seeker upon return however DFAT finds that it is not a crime for a Sri Lankan citizen to seek asylum abroad.[7] Further, the applicant’s husband and son remain in Sri Lanka and she will be able to return to her family home and have their support upon return.
[7] DFAT Country Information Report Sri Lanka .2 May 2024 at 5.36
It is 8 years since the applicant left Sri Lanka and her evidence to the Tribunal is that neither she nor her family have been exposed to further threats since 2016. There is fresh leadership in Sri Lanka and the newly elected President Dissanayake is reported to have pledged prior to the election to eradicate corruption and hold dishonest politicians and official accountable.[8] I do not accept that a pledge to address corruption means that ‘ordinary’ supporters of previous regimes will be punished. I give weight to DFAT’s assessment that people affiliated with established political parties faced a low risk of official or societal harassment. While this assessment was made prior to the election of President Dissanayake, the applicant has not provided any independent evidence to support her claim that ‘ordinary’ people will now face harassment or harm because of historical political allegiances.
[8] Sri Lanka: Why the country’s wait for elections must end. The Conversation. 17 February 2024. Sri Lanka: why the country’s wait for elections must end (theconversation.com)
While I acknowledge that the applicant may have experienced resentment and jealousy in the past from others in the athletic community because of her favoured status and relationship with political leaders, I find that 8 years have passed and her ‘favoured status’ would no longer exist if she returns to Sri Lanka in the near or foreseeable future. Having considered the applicant’s evidence, I do not accept that she was threatened in 2015 and 2016 because of her relationship with [Politician 1] and the Rajapaksa regime. I am not satisfied that she has a significant profile with Sri Lankan authorities or with any other persons because of her actual or imputed political opinion. Having regard to relevant country information, I find that the applicant faces a low risk of official or societal harassment because of her past political affiliation.
Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the types and levels of harm that will meet the serious harm test, listing the following as 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; I 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. Having considered the applicant’s circumstances and the available evidence I do not accept that there is a real chance she will face serious harm upon return to Sri Lanka.
In terms of the complementary protection criterion, ‘significant harm’ 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. There is no suggestion that the applicant would be arbitrarily deprived of her life, subjected to the death penalty or tortured. ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]– [27] and [114]. The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)I. Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Having regard to the evidence before me I am not satisfied that there is a real risk that the applicant will face significant harm upon return to Sri Lanka.
For the reasons given, I am not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future, in relation to her past association with [Politician 1] and the former Rajapaksa regime.
Request for referral for Ministerial intervention
In the event of an unsuccessful review application, the applicant has asked the Tribunal to refer this matter to the Minister for consideration of the Minister’s power to intervene and grant her a visa pursuant to s 351 of the Act.
Under s 351 of the Act, the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to determine, and the Minister’s power to intervene is personal and non-compellable. Appropriate cases are those that have one or more unique or exceptional circumstances. Relevant to the applicant are circumstances whereby exceptional economic, scientific, cultural or other benefits would result from the applicant being permitted to remain in Australia.
I have considered the applicant’s request however I am not satisfied that the applicant’s athletic ability and participation in Australian athletics activities constitutes an exceptional circumstance. I have therefore decided not to refer her case to the Minister. I note that the applicant is still able to request Ministerial intervention herself.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Wall
Member

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.
…

[2024] AATA 4478

9 October 2024

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