2117018 (Refugee) - [2024] ARTA 545

2117018 (REFUGEE) [2024] ARTA 545 (11 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2117018
Tribunal:General Member C Wall
Date:11 November 2024

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

Statement made on 11 November 2024 at 1:21pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – supporter, fundraiser and campaigner for governing party – association with politicians arrested for corruption after change of government – colleague detained and tortured and applicant threatened – mental health and treatment – vague and inconsistent claims and evidence – delay in departing after threats – travel to other countries and returns – no political activities in Australia – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a),5J(1), 36(2)(a), (aa), (2A), 65, 91R(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
CSV15 V MIBP [2018] FCA 699
EZC18 V MHA [2019] FCA 464
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 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 national of Sri Lanka, applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that she is not owed protection by Australia.
The applicant appeared before the Tribunal on 31 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], Clinical Psychologist, via phone. 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.
BACKGROUND
The applicant is now [Age] years of age. She is of Sinhalese ethnicity and her religion is Buddhism. She married in 1980 and has two sons aged [Ages].
She was a talented [activity participant] and represented Sri Lanka in various [events]. She lived with her family in [Town].
The applicant travelled to [Australia], to [participate] in [an Event] in October 2016. She remained in Australia and lodged a protection visa.
She works as [an occupation] each morning and works in a [workplace] in the afternoons. She lives with a family In Melbourne and assists in the care of a member of that family who has [Condition].
The applicant has been engaging in psychological therapy since August 2023. She is not currently on any medication and continues her [activities] in Australia.
CLAIMS
In the visa applicant the applicant made the following claims (in summary):
She was a talented [activity participant] in Sir Lanka and an active supporter of the Sr Lankan Freedom Party (SLFP) and Rajapaksa government for whom she campaigned prior to the 2015 election.
She was close to her local Members of Parliament – [Mr B] and [Mr C].
By 2016 the Sri Lankan government was interrogating and detaining member of the SLFT and [Mr B and Mr C] were arrested on charges of corruption.
A group of men visited her home asking about her. She also received anonymous telephone death threats. Her close work colleague was detained and tortured.
People were jealous of the applicant’s [abilities] and political connections.
She decided to seek protection in Australia. She fears her life will be in danger if she returns to Sri Lanka.
SUPPORTING DOCUMENTS
The applicant provided the Department with the following evidence in support of her claims:
oA letter from [Mr B], dated 27 December 2016, which states that the applicant has been active in politics for a long time and supported Mahinda Rajapaksa in the 2015 election.
oA letter from [Mr C] dated 7 May 2014 declares that the applicant was engaged in public awareness campaigns for the Sri Lanka Freedom Party at elections and was a poling agent.
oA police report dated 5 October 2017 which records a report from the applicant’s husband [that] the applicant had received death threats when she was in Sri Lanka and that unknown people had recently enquired about the applicant’s whereabouts.
oA legal submission dated 18 November 2021 addressing the applicant’s claims.
oCopies of media articles reporting on political violence in Sri Lanka.
oLetters of support attesting to the applicant’s good character and [abilities].
oA UNHCR report on Sri Lanka dated 27 January 2021.
oThe applicant’s statutory declaration dated 15 November 2021.
The applicant submitted the following information to the Tribunal:
oA legal submission dated 23 September 2024 detailing the applicant’s claims.
oA statutory declaration signed by the applicant on 23 September 2024 which details her circumstances in Sri Lanka and her fear of return.
oLetters of support attesting to the applicant’s good character from [the landlord], the [Organisation 1], [named employer], [named employer] and [Organisation 2].
oA letter from [Organisation 3] which states that the applicant has been an active member since February 2022.
oCopies of media articles relating to political conflict and social unrest in Sri Lanka.
oA media article dated [January] 2017 reporting the postponement of the case against [Mr C].
oA media articled dated [July] 2015 which reports that [Mr B] and his wife were granted [bail].
oA media article dated [August] 2015 which reports that 3 people including [Mr C] were remanded in relation to claims that they assaulted a [political] supporter [in] August. It notes that [Mr C] was on remand for alleged [offence] and had been released on bail prior to the incident.
oA media article about an [attack] on [Mr B]’s properties, dated [July] 2022.
oA media article dated 14 May 2023 which reports the ‘brutal slaying of Amarakeerthi Athukorala’.
Evidence at hearing
The applicant’s oral evidence about her background in Sri Lanka was consistent with the previous information she had submitted. She married in 1980 and lived with her husband and 2 sons in [Town], Sri Lanka. Her husband had a small business [and] she had a paid [job].
She said that her husband and sons were never involved in politics, however she was an active supporter of the Rajapaksa government from 2008. When asked to explain what she meant as ‘active’ she said that she attended meetings, tried to recruit supporters to the party and, as a well-known [activity participant], she sometimes was asked to sit on the stage with the politicians. She was particularly close to [Mr C and Mr B].
The applicant said that members of the Rajapaksa government and their supporters were targeted after the 2015 election and she was scared. ‘Thugs’ came to her house in June 2015 and asked her husband about her whereabouts, as she was not at home at the time. This happened 6-7 times and if she was home when they called she ran away to avoid them. She also received phone calls when the caller swore at her and threatened to rape her. She said that she never reported the threats to the police as the police only support the government. She avoided harm by changing her usual work and [routine] and ‘hiding’ in other places. She said that she was not able to lead a normal life, however her husband and sons could lead a normal life.
In 2016 the applicant attended [events] in [Countries 1 and 2]. When she attended an [event] in [Australia] in October 2016 she decided to stay and seek protection. She travelled to Melbourne where ‘someone she knew’ helped her. She has been working and living in Melbourne since that time and boards with a family with whom she has become very close.
I asked the applicant whether she has contact with family in Sri Lanka. She said that her mother died in 2019 and her husband and sons stopped talking to her after that time because they continued to receive threats after she left the county. They told people that she had remarried in Australia. She has no siblings and no aunts or uncles. When asked about cousins, the applicant’s response was vague. She said that she is close to some and not others.
The applicant said that she has not engaged in any political activism in Australia. She believes that she will be targeted if she returns to Sri Lanka because the two politicians with whom she was associated are in custody and her friend was stabbed. I asked for details of this friend however the applicant only said that they were ‘political friends’. When questioned further about the current circumstances of [Mr C and Mr B], she said that they are in hiding in Sri Lanka.
The applicant said that she experienced stress, difficulty sleeping and poor memory so last year her GP suggested she consult a psychologist. She has had about 10 telephone consultations with [Mr A] who is in Brisbane. [Mr A] confirmed these details in his oral evidence to the Tribunal. As he had provided no detail in his report of the type of therapy he used with the applicant, I asked him for details of the therapy and outcomes. He said that he used trauma informed therapy and focussed on helping the applicant to learn coping skills. He said that her condition has not improved significantly and he is not aware that he is taking medication for her mental health problems. He said that the applicant’s condition may impact on her ability to remember details of events.
I observed that [Mr A] had made definitive comments about the state of politics in Sri Lanka and the applicant’s experiences there, which appears to be outside the scope of his clinical expertise. He said that he has personal experiences of life in Sri Lanka and follows development closely as he has [an Online] channel.
I advised the applicant that I had concerns about some aspects of her evidence and I would discuss these with her.
Firstly, I said that I might find that her profile as a Rajapaksa supporter was not significant enough to subject her to harm. Even if I accepted her claim that she received threats after the 2015 election, she remained in Sri Lanka for 18 months after the election and was not subject to any actual harm from either the new government or its supporters. She said that this was because she changed her routines and went into hiding.
Secondly, I noted that she travelled to [Countries 1 and 2] in 2016 and chose to return to Sri Lanka on each occasion, which appears inconsistent with her claim that she feared for her safety in Sri Lanka. She said that she was not ready to leave her family at that time. She confirmed that she had no problems leaving or entering Sri Lanka on those occasions.
Thirdly, I referred to the 2024 DFAT report which records that In-country sources reported that people affiliated with established political parties faced a low risk of official or societal harassment:
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.[1]
[1] DFAT Country Information Report Sri Lanka. 2 May 2024 at 3.64-3.65
In response, the applicant said that she cannot accept the DFAT findings as revenge does take place. She said that she has built a good life in Australia and would not receive proper care in Sri Lanka. She has no family or career in Sri Lanka. She might end her life if she has to return.
Fourthly, I discussed with the applicant my concern that her evidence has changed over time in regard to who may harm her and for what reason.
oWhen she applied for protection in 2016 she claimed that she feared harm from the new Sirensa government and their supporters because of her previous association with the Rajapaksa government.
oWhen she was interviewed by the Department, as recorded in the delegate’s decision she provided to the Tribunal for the purpose of review, she was asked why she feared harm at that time given that the SLFP had won the August 2020 election. The applicant claimed that this was not true. She told the Department that the people that had killed her friends and had threatened to kill her were still active in Sri Lanka.
oAt the time of the Tribunal hearing she says that she fears harm from the Dissanayake Government and its supporters because of her previous association with the Rajapaksa government.
I advised her that I was unable to locate any reports to support her claim that Dissanayake was going to target former members of the SLFP. In response, the applicant said that she feared harm in 2021 because, while the Rajapaksa government held power, the atmosphere was unstable at that time and could change. In relation to the current government, she said that while Dissanayake has not said that he will seek revenge, his supporters may do so. I noted that President Dissanayake has stated that he will tackle corruption. I asked it she fears harm because she was involved in corruption. She said that she was not involved in any corrupt activities but the two politicians to whom she was close were accused of corruption. She said that [Mr C] is in hiding and that [Mr B]’s arrest is imminent.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person 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.
REASONS AND FINDINGS
The applicant 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.
The issue in this case is whether the applicant is owed protection by Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Fear of harm due to previous allegiance to Rajapaksa government
The applicant has consistently stated that she was close to and campaigned for the SLFP from 2008 to 2015 when the government was led by Mahinda Rajapaksa. She has submitted statements from both [Mr B and Mr C], former Ministers in the Rajapaksa governments, who confirm her active support for the Party. I therefore accept that the applicant was a supporter of the Rajapaksa government and that she participated in various activities to support the government’s re-election in 2015. I also accept that she was a well-known [activity participant] and therefore was known publicly as a supporter of the SLFP.
I have considered the political context relevant to the applicant’s claims. 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.[2]
[2] 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). 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]
[3] Anura Kumara Dissanayake: who is Sri Lanka’s new leftist president? | Sri Lanka | The Guardian

As discussed with the applicant, DFAT reports that people affiliated with established political parties faced a low risk of official or societal harassment and that political parties, including opposition parties, are able to operate freely. The DFAT report was published prior to the election of President Dissanayake in September 2024. While his anti-corruption agenda is well documented, I found 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 and the applicant did not provide any independent evidence in this regard.
The applicant claims that members and supporters of the Rajapaksa regime were targeted after the 2015 when the Sirensa government was elected. She has submitted media reports relating to the arrest of [Mr B and Mr C]. Both were released on bail. I acknowledge that former members of the Rajapaksa government were investigated after the 2015 election, generally in relation to allegations of corruption and fraud. I accept that the applicant was scared that she too would be targeted because of her support for the SLFP and her relationship with [Mr B and Mr C].
[Details deleted].[4]
[4] [Reference]
[Details deleted].[5]
[5] [Reference]
I am willing to accept that there was significant anti-Rajapaksa regime sentiment in the community after the 2015 election and that some members of the community may have expressed hostility towards the applicant at that time. I acknowledge that this would have been unpleasant for her. However, for the following reasons, I do not accept that any threats she received were such that she faced serious harm.
The applicant has submitted various media reports about violence and political instability in Sri Lanka over time. It is argued in submissions that much violence is committed by members of the community and that this can be unpredictable. I acknowledge that Sri Lanka has a turbulent social and political history and I have been mindful of this context when considering the applicant’s claims.
The Tribunal heard that the applicant remained in Sri Lanka from the time of the election in January 2015 until she left for Australia in October 2016. Her visa application states that she travelled to [Country 2] in June 2015, to [Country 1] in May 2016 and to [Country 2] again in September 2016. Although she claimed that she was very scared during this 20-month period and had to hide sometimes and vary her travel and [routines], she continued to [do the activity], travel and [participate]. I am satisfied that, if people wanted to follow through on threats they would have been able to locate her and take action against her given her [profile], however this never happened. I find that the applicant was subject to verbal harassment on some occasions in 2015 but this harassment did not progress to harm.
I found the applicant’s evidence about the threats to be both vague and inconsistent. At hearing she said that neither she nor her husband ever reported the threats to the police because the police supported the new government and would take no action. Yet the applicant submitted a copy of a police report to the Department which said that her husband reported to police on 5 October 2017 that unknown men came to his house on 12 September 2017 asking about the applicant’s whereabouts. In the police report her husband states that she received death threats when she was living in Sri Lanka. If the applicant did receive death threats in 2015/2016, I find it implausible that she did not report them at the time, yet her husband reported a visit from unknown men when the applicant was living in Australia and therefore was not at risk of harm from these men.
She also made vague references to ‘friends’ who had been harmed and/or killed, yet she was unable to provide details of these events. Her evidence was also inconsistent when asked if her husband and sons had been threatened since she left the country. At one time she said that they were able to lead normal lives, then she later said that they ceased contact with her because her political activities caused them to be threatened.
In regard to official persecution, I find that the Sirensa Government could easily have located the applicant if it wished to prosecute her after the 2015 election. She told the Tribunal that she was never involved in any acts of corruption, she simply assisted the Rajapaksa government with fundraising and campaign activities. She travelled to [Countries 1 and 2] without encountering any difficulties at the Sri Lankan border, and she travelled to Australia without difficulty. If the Sirensa Government suspected her of involvement in corruption or any other illegal activities they could have questioned or arrested her at any time between January 2015 and October 2016, however they did not do so.
The applicant’s claims in regard to the identity of her persecutors have shifted over time. When given the opportunity to explain these inconsistencies, I found the applicant’s response lacked credibility.
The issue before me is whether there is a real chance that the applicant will face serious harm if she returns to Sri Lanka in the near or foreseeable future. She has been unable to provide any probative evidence that the Dissanayake Government has indicated that it will target former supporters of the SLFP. I acknowledge that the government may take action against former politicians who are alleged to have engaged in corruption, but this is quite different from taking action against former supporter of the SLFP.
The applicant rejected the DFAT’s assessment that supporters of established political parties face a low risk of societal or official harassment in Sri Lanka. Instead of providing reasons for her rejection of these findings, she stressed that she is happy and settled in Australia and has nothing to return to in Sri Lanka. I find the applicant’s claim that the current government will target her as a former supporter of the Rajapaksa government is speculative and she has not provided any independent evidence to support her claims.
Having considered the applicant’s circumstances, relevant country information and the available evidence, I am not satisfied that there is a real chance that the applicant will face serious harm in Sri Lanka as a former supporter of the SLLP.
Fear of harm due to mental health condition/vulnerability
I have had regard to the psychological report form [Mr A] which states that the applicant has symptoms of Post Traumatic Stress Disorder, anxiety and depression. I give this report little weight for the following reasons. Firstly, the report does not provide details of [Mr A]’s qualifications and experience in treating patients with mental health disorders. It does not state how many consultations he has had with the applicant or whether the therapy is ongoing. It does not detail the diagnostic tests he has used to assess the applicant, nor does it detail the nature of the therapeutic work with the applicant. When I took oral evidence from [Mr A] I was able to ascertain that he has seen the applicant nine times and the therapy is ongoing.
Secondly, [Mr A]’s report contains his personal commentary on the socio-political environment in Sri Lanka and asserts that it is within this context of violence that the applicant was targeted in her hometown. When I advised him that such political analysis appears to be outside his scope of professional psychological practise, he claimed that he knows Sri Lanka well and keeps abreast of developments as he runs [an Online] channel devoted to these issues. I find that his report is one of advocacy for the applicant and is not an objective assessment of the applicant’s mental health, as is expected by the Tribunal of a health professional. [Mr A] first met the applicant in 2023 and does not have direct knowledge of the applicant’s circumstances in Sri Lanka, therefore his opinion about the harm she experienced in based solely on what the applicant has told him.
Thirdly, I find that [Mr A]’s description of the applicant’s current level of mental distress, as detailed in his written report, is inconsistent with other evidence before me. The applicant said that she is very happy and settled in Australia, that she has two jobs, that she lives with people whom she considers to be ‘family’ and that she assists others in need. She also continues her [activities] as corroborated by letters from [Organisation 1] and [Organisation 2] which refer to her regular participation in events and her exceptional level of enthusiasm and commitment to [activity]. I give weight to the letters of support which attest to her good character. Her employers describe her as enthusiastic, flexible, efficient, positive and reliable.
The Australian courts have held that an applicant’s mental illness will not on its own satisfy the requirements of s 36(2)(a) or (aa) of the Act, because both ‘serious harm’ and ‘significant harm’ refer to acts perpetrated by others which cause the non-citizen to suffer harm.[6]
[6] CSV15 V MIBP [2018] FCA 699; EZC18 V MHA [2019] FCA 464.
On the evidence before me I accept that the applicant had a subjective fear of harm when she left Sri Lanka. I also accept that she is stressed and anxious about the possibility of returning to Sri Lanka. Given her physical health, employment status and social and [networks], I find that she is living an active and productive life in Australia. I am therefore not persuaded that she will be particularly vulnerable to harm in Sri Lanka because of her mental health condition. I am mindful that the applicant said that she may end her life if she has to return to Sri Lanka. This is a serious statement to make. I am satisfied however that she is currently seeing a psychologist and she is able to discuss these issues with him. I also give weight to DFAT’s finding that access to mental health services is available to all Sri Lankans and that the National Institute of Mental Health treats 8,000 patients annually and provides 24 hours emergency care and out-patient facilities.[7] Accordingly, I am satisfied that the applicant is able to access appropriate support upon return to Sri Lanka.
[7] DFAT Country Information Report Sri Lanka. 2 May 2024 at 2.42-2.47.
I do not accept that any deterioration in the applicant’s mental health would be the result of an act perpetrated by others for the purposes of s.36(2)(a), nor do I accept that it would arise from systematic and discriminatory conduct by any person or group, as required by s.91R(c) Accordingly, I do not accept that there is a real chance the applicant would suffer ‘serious harm’ on return to Sri Lanka for reasons of her mental health.
I have also considered the applicant’s claim that she has no-one in Sri Lanka and she will have no career. I am willing to accept that her relationship with her husband and sons is problematic, given that she left the family 8 years ago. She may not be able to rely on them for support upon return to Sri Lanka, however her evidence to the Tribunal was that she was well known in Sri Lanka and enjoyed wide social, political and [networks]. I found her responses to be evasive when I asked her about extended family in Sri Lanka. She said that she had cousins and that some are close and some are not close. I find that she did not wish to disclose family connections on which she could rely for support if returned to Sri Lanka. For these reasons I do not accept that she will be without any support if she returns to Sri Lanka.
In regard to employment, I am satisfied that the applicant was employed in Sri Lanka and has worked in various jobs in Australia therefore she has the skills and ability to obtain employment in Sri Lanka. She has demonstrated considerable resourcefulness in creating a life in Australia where the language and culture is unfamiliar. I am therefore satisfied that she will be able to adjust to life in Sri Lanka where she lived for [Number] years and where she had social, employment and [networks].
Having considered the applicant’s circumstances individually and cumulatively, I am not satisfied that there is a real chance of harm because of her support for the Rajapaksa regime or because of her mental health condition or because she will be unemployed and without family support, if the applicant returns to her home area of Sri Lanka in the reasonably foreseeable future. It follows that I find that the applicant does not satisfy s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
For the reasons given, I accept that the applicant was a supporter for the Rajapaksa regime however I do not accept that there is a real risk that her past pollical associations will subject her to significant harm if she returns to Sri Lanka in the near of foreseeable future.
I do not accept any deterioration in the applicant’s mental health would be the result of any act or omission by another person or persons as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. It has not been suggested, and I do not accept, that the applicant will be arbitrarily deprived of her life or that death penalty will be carried out for any reason if the applicant is returned to Sri Lanka. I do not accept that there is a real risk the applicant would be subjected to significant harm for reasons of her mental health.
As I do not accept the applicant’s claim that she will not be able to obtain employment and will not have any support in Sri Lanka, it follows that I am not satisfied that there is a real risk that the applicant would be subject to significant harm for reasons of unemployment or social isolation.
I find that the applicant does not satisfy s 36(2)(aa).
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.
Date of hearing:   31 October 2024
Representative for the applicant: Mr Indika Karunajeewa
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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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