2119666 (Refugee)

2119666 (Refugee) [2024] AATA 4384 (16 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2119666
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Samira Kamandi
DATE:16 September 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 September 2024 at 10:08am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – supported close friend in provincial council election, contested parliamentary election as independent and joined new party – threatened, assaulted and hit by car – extensive travel, including at times of claimed political activities – exaggerated claims – delays in departing after claimed incidents and in applying for protection – no evidence of party memberships or activities, vague knowledge of parties’ policies and no activities in Australia – authenticity of police report – country information – elections generally free and fair and economic conditions stabilised – processes for returnees on temporary documents – no profile of concern to authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant was born in [Year] in Colombo, Sri Lanka. He is a citizen of Sri Lanka of Sinhalese ethnicity, and his religion is Catholic.
The applicant arrived in Australia [in] January 2018 and applied for a protection visa on 5 April 2018, which was refused by a delegate of the Minister for Home Affairs on 21 December 2021 under s 65 of the Migration Act 1958 (Cth) (the Act).
On 21 December 2021, the applicant applied for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal). This is a decision of that review application by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the delegate
The applicant’s claims for protection as outlined in his protection visa application, the delegate’s decision record, and in a post-interview submission prepared by his former representative after the interview with the delegate, can be summarised as follows:
·The applicant lived with his wife and [daughters] in Sri Lanka. He engaged in political activities in addition to operating his businesses.
·In March 2014, the applicant supported the candidacy of his close friend who contested the provincial council election as a United National Party (UNP) candidate for [District]. He supported his friend by raising funds, publishing newspaper advertisements, printing and distributing leaflets, and talking to people.
·In 2015, the applicant contested the parliamentary election in Sri Lanka as an independent candidate. He talked to people about the corruption within the government, a coalition of the UNP and Sri Lanka Freedom Party (SLFP), and the government’s indifferent attitude towards unreasonable taxation, corruption of officials, intimidation, expansion of drug trafficking, and rising costs of living.
·[In] August 2015, while returning from a friend’s place, 2 unknown persons on motorbikes blocked the applicant’s car. The pillion rider came close and asked the applicant to put down the window and assaulted and threatened to kill him if he did not keep away from politics. The applicant could not identify the men as they were wearing full face helmets. The applicant made a complaint with the police on the same day. He went to a government hospital but did not feel safe and left the hospital later that day. The police did not take any action. The applicant’s mental health broke down and his business deteriorated.
·In November 2016, the Sri Lanka Podujana Peramuna (People’s Front) (SLPP) was launched, and the applicant decided to support the party in any way that he could.
·In September 2017 the applicant was hit by a car in Colombo, which fractured his leg. The applicant was convinced that he was targeted because of his support for the SLPP. The matter was reported to the police, but no action was taken by the police. The applicant decided to continue with his political activities and to contest the next election.
·On 4 January 2018, 2 sturdy looking men came to his house. The applicant was at home with his friend. His wife and children were not home at the time. The men threatened the applicant, telling him to keep away from politics or all his family would die. One of the men took out a pistol and pointed it at the applicant. He was told that this was the final warning and not to go to the police or he would be killed.
·The applicant decided not to report the matter to the police and to use his visitor visa for Australia and leave the country. He found a safe place for his family and departed Sri Lanka [in] January 2018.
·After the applicant’s arrival in Australia, the situation in Sri Lanka worsened. Political killings became more frequent, and the government decided not to take any action. The applicant became fearful for his safety and decided to apply for a protection visa.
·The applicant fears harm for reasons of his political opinion and as a member of a particular social group, being the ‘political class in Sri Lanka’, membership of which includes ‘privileged and sometimes wealthy people who engage in politics’.
·The applicant is a successful businessman and ran for Parliament as an independent and has consistently campaigned for the SLPP since 2016. He will be harmed by opposition parties and those who benefit from the status quo, particularly given that the applicant was a keen campaigner on anticorruption issues.
·The applicant cannot move to another area as Sri Lanka is a very small country making it impossible for him to remain anonymous and undetected by his persecutors.
In support of his protection visa application, the applicant provided the delegate with the following supporting evidence:
·Written submissions prepared by the applicant’s former representative.
·Copies of photographs, election campaign flyers, information from the election office, and an election identity card (and English translation) in support of his claim that he contested the 2015 parliamentary election as an independent candidate.
·A copy of a police report dated [September] 2015.
·A copy of a police complaint dated [September] 2017.
·Copies of affidavits by the applicant and his friend regarding the 4 January 2018 incident.
Delegate’s decision
The delegate’s decision indicates that the applicant was interviewed on 1 December 2021.
While the delegate accepted that the applicant was a successful businessman who canvassed political support among his local community in Sri Lanka, the delegate did not accept that the applicant contested the parliamentary elections in August 2015 as claimed or that he was assaulted by unknown assailants because of his political activities in 2015.
The delegate accepted that the applicant was a supporter of the SLPP, however, did not accept that the applicant is a member of the political class in Sri Lanka, that he held a senior role in the SLPP in his local community or that he had any intention to contest an election as an SLPP candidate prior to his departure from Sri Lanka.
The delegate did not accept that the applicant left Sri Lanka in 2018 because he was threatened by his political opponents as a result of his support for the SLPP. The delegate noted that while the applicant may have been involved in a car accident during which he sustained injuries to his leg, there was no credible evidence to indicate that he was targeted because of his political activities in Sri Lanka.
In considering country information about the political environment in Sri Lanka and the applicant’s overall profile, the delegate was not satisfied that the applicant faced a real chance of serious harm or there was a real risk of significant harm because of his political opinion or that he was a member of the particular social group described by his former representative as ‘successful businessmen of political class in Sri Lanka’.
In considering the applicant’s return as a Sinhalese failed asylum seeker who departed the country legally and had lived in Australia for an extensive period, the delegate was not satisfied that he faced a real chance of serious harm or there was a real risk of significant harm for these reasons.
The applicant’s protection visa application was refused on 21 December 2021.
Review application
On 21 December 2021, the applicant applied for a review of the delegate’s decision with the Tribunal. The applicant provided the Tribunal with a copy of the delegate’s decision.
On 5 February 2024, the applicant’s former representative emailed the Tribunal indicating that they no longer represent the applicant and that all communication about the applicant’s matter should be sent directly to him.
On 15 July 2024, in response to correspondence from the Tribunal requiring information about the applicant’s availability to attend a hearing, the applicant provided the Tribunal with further documentary evidence. This included material that was provided to the delegate and referred to above, and the following additional documents:
·A copy of the Gazette notification regarding the 2015 parliamentary election, noting the applicant as part of the ‘Independent Group [Number]’.
·A copy of a photograph with a notation ‘the former president Mr. Mahinda Rajapaksa’s brother former minister Mr. Basil Rajapaksa’.
·A copy of the applicant’s Sri Lankan passport (expired in 2010) with stamped pages showing his travel history.
·A copy of the applicant’s Sri Lankan passport (expired in [2024]) and stamped pages showing prior visas and travel.
On 25 July 2024, the applicant was invited to a hearing before the Tribunal. The applicant responded confirming his attendance and provided the Tribunal with an affidavit, restating his claims raised before the delegate, dated 22 August 2024.
The hearing was held in person at the Tribunal’s Perth Registry on 3 September 2024. The applicant was not represented. The hearing was held with the assistance of an interpreter in the Sinhalese and English languages. The applicant and the interpreter confirmed that they understood each other. The applicant responded to my questions and did not raise any issues with the interpretation services provided at the hearing, nor indicated that he had difficulties understanding the interpreter. I am satisfied that the applicant had a real and meaningful opportunity to engage with the hearing process and was able to present his claims. Where relevant, the applicant’s evidence given at the hearing is discussed below.
At the commencement of the hearing, I explained the purpose of the hearing and the criteria for the grant of a protection visa to the applicant. I explained that I was not bound by the findings of the delegate and that I would be assessing the evidence and information before me, including the applicant’s evidence given at the hearing, in determining his review application. I indicated that all aspects of the applicant’s claims were in issue before me and that he should not assume that anything that was accepted by the delegate would also be accepted by me. I further expressed that I would be discussing any concerns or issues that I may have with the applicant’s claims or evidence with him and that the purpose of this was to allow him to understand the issues and provide his responses and any further information that he wished for me to take into consideration. I indicated that I have consulted country information, including the most recent Department of Foreign Affairs and Trade (DFAT) report published in 2024[1] about the situation in Sri Lanka and that I would be discussing the relevant information with him at the hearing. The applicant expressed his understanding of these matters and indicated that he had no questions in this regard.
[1] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
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). 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Sri Lanka for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
For the following reasons, I have decided to affirm the decision under review.
Country of reference
The applicant has consistently claimed to be a citizen of Sri Lanka and has provided copies of his Sri Lankan passports. I accept that the applicant is a national of Sri Lanka, and that Sri Lanka is the receiving country for the purposes of this assessment.
Analysis, findings and reasons
Background information
At the hearing the applicant confirmed that he is of Sinhalese ethnicity. He stated that although he was born a Buddhist, he converted to Catholicism when he was around 18 years of age because he believed in God. He stated that he has been a practising Catholic since and has been attending church in Sri Lanka and in Australia. The applicant also stated that his wife and children are practising Catholics.
I accept that the applicant is of Sinhalese ethnicity and a practising Catholic. He has not made any claims based on his ethnicity or religion.
At the hearing, the applicant confirmed his address history as provided in his protection visa application. On the applicant’s evidence he resided in Colombo and surrounding areas the entire period he was living in Sri Lanka. Regarding his education, the applicant confirmed that he completed high school, following which he enrolled at college to study a diploma in [subject 1], which he completed around [Year]. He then undertook various other courses [and] worked at a [workplace] while he completed these courses.
The applicant confirmed that he worked as [an occupation] in Colombo between 2002 and 2004, after which he started his businesses. He explained that he commenced his [business], located in Colombo, which involved buying and selling [products] as well as importing [products] from [overseas]. While operating this business, the applicant said that he also bought houses, renovated them, and then sold them for a profit. While his protection visa application indicates that he worked until August 2014, at the hearing the applicant stated that he continued with his [business] until his departure for Australia in January 2018 and that he handed over the business to his cousin on his departure to sell the remaining [products]. His cousin sold the [products] within a few months of the applicant’s departure for Australia and closed the business.
I accept that the applicant resided and worked in Colombo. I accept that he completed high school and further education in [subject 1] and various other [courses]. I accept that he worked at [a workplace] and as [an occupation], before setting up and operating a [business], which he continued to operate until his departure for Australia in 2018. I accept that the applicant also engaged in buying and selling homes for a profit, and that he continues to own 2 properties, an apartment and a house, in Colombo which are rented, and which he receives rental income from.
Regarding his family, the applicant stated that his father passed away and that his mother resides with his [sister] in Ratnapura and that his [brother] lives in [Country]. He confirmed that he married his wife in 2002 and that they [have], now adult, daughters who are about to complete their university [degrees]. He confirmed that his wife and daughters reside in Colombo.
At the hearing, the applicant confirmed that he is in regular contact with his family members in Sri Lanka, and that he speaks to his wife daily. He stated that his wife and daughters do not work and that they receive the rental income from the Colombo properties and interest from savings in the bank to support themselves. The applicant also sends them money on occasion. I accept the applicant’s evidence about his family and his wife and daughters’ circumstances in Sri Lanka.
Regarding his activities in Australia, the applicant stated that he supported himself with his savings when he first came to Australia and that after obtaining work rights, he has been working as [an occupation 1] and [occupation 1] supervisor. He stated that he attends church and is involved in church activities and that he also socialises with the Sri Lankan community and attends social events such as new year festivities. He confirmed that apart from working and his involvement with the church and social events, he has not been involved in any other activities and has not been involved with political groups in Australia or in Sri Lanka during the years that he has been residing in Australia. I accept the applicant’s evidence in this regard.
Travel history

The applicant has provided details of his travel and visa application history, including copies of stamped pages of his Sri Lankan passports. As discussed at the hearing, the applicant has travelled extensively. At the hearing, the applicant stated that prior to his arrival in Australia in January 2018, he had travelled to Australia with his family in 2007 as tourists.
On the information provided by the applicant, he has travelled to many countries to visit family as well as for business purposes. At times he has travelled with his family, including to [Country] for an extensive period between August 2014 and February 2015. The information also indicates that the applicant applied for a visitor visa for [Country] on 2 occasions in April 2017, which were refused, and he indicates that this was because he had recently travelled to [Country].
Timing of departure and protection visa application
In his written evidence the applicant claims that after the January 2018 incident at his home, he decided to leave Sri Lanka temporarily. At the hearing, the applicant stated that he had a multiple entry visa to Australia that was granted around 9 months prior to January 2018 and that he decided to use that visa to travel to Australia prior to its expiry.
The applicant applied for his protection visa on 5 April 2018, about 3 months after his arrival in Australia and close to the expiry of the 3-month stay period permitted by his visa. At the hearing I asked the applicant, given that he claims he was threatened with death days prior to his departure for Australia causing him to depart the country due to fear for his safety, why he waited 3 months before applying for a protection visa. The applicant said that he arrived in Australia with no intention to apply for a protection visa and to just monitor the situation in Sri Lanka before deciding about his return to Sri Lanka. He then said that because of the threats he faced in Sri Lanka, he decided to apply for a protection visa. When referred to his evidence that he claims to have faced these threats in Sri Lanka prior to coming to Australia, the applicant stated that there was an election on 10 January 2018, and he thought that the situation would change. When I observed that he arrived in Australia [in] January 2018, and asked which election he was referring to, the applicant said it was the provincial council election which occurred during that time. When asked about what happened because of this election that made him apply for protection in Australia, the applicant vaguely referred to ‘incidents that happened between the parties’ such as the UNP, SLFP and the communist party. When asked to elaborate the applicant said that he had faced issues and was actively participating in politics. Despite many attempts to seek clarification, I found the applicant’s evidence in this regard vague and perplexing.
I asked the applicant about how he monitored the situation in Sri Lanka in the 3 months before applying for a protection visa. The applicant stated that as he was using his Sri Lankan mobile number at the time, his political associates in Sri Lanka did not know that he was in Australia and were giving him information about the situation via messages. He said that they told him that the situation was bad and that there were assaults on party officers and ‘other commotions’. When asked if he could produce the messages, the applicant said that he accidently put his telephone in the washing machine and lost all the messages and that since his protection visa application he has had no contact with anyone in Sri Lanka about the political environment in the country.
At the hearing I expressed that the timing of his departure from Sri Lanka, just prior to the expiry of his visitor visa, which he states was granted months prior, and the delay in lodging his protection visa application, which was lodged just prior to him being required to return to Sri Lanka, may cause me to conclude that he does not have a genuine fear of being returned to Sri Lanka and that he applied for a protection visa so he could remain in Australia. The applicant stated that he had no comments in this regard.
I found the applicant’s explanation about the delay in lodging his protection unsatisfactory. Considering my findings and reasons set out below, in my view, that the applicant departed Sri Lanka when he did due to the imminent expiry of his visitor visa and that he applied for a protection visa just prior to the expiration of his visitor visa because he wanted to remain in Australia and work.
Claims for protection
The applicant has consistently claimed that the reason he fears returning to Sri Lanka is because of his past political activities and incidents involving unknown people, who he believes were from opposing political parties.
While the applicant’s evidence for the purposes of his protection visa application has been presented in a broadly consistent manner, for the reasons below, I have concluded that the applicant has exaggerated his past political involvement/profile to bolster his claims for protection and do not accept the claimed incidents of harm to be credible.
The applicant claims that he supported the candidacy of his close friend who ran on behalf of the UNP in the March 2014 provincial council elections. After becoming disillusioned with the ruling political parties at the time, which he claims were the UNP and SLFP, he contested the 2015 parliamentary election as an independent.
At the hearing the applicant said that he decided to support the UNP candidate because the candidate was a close friend of his and a well-known politician. When asked if he was involved in politics prior to supporting his close friend, the applicant responded in the positive. When asked to expand on his political activities, the applicant referred to organising political meetings at the village level and educating people about politics. When asked which party he was supporting at the time, the applicant said the UNP and the SLFP. He also said that he was a member of these political parties, paid for his membership fees, and that he had a lot of politician friends.
I asked if the photographs, where the applicant is seen to be alongside another person in a white shirt, were photographs of him and his friend during the March 2014 provincial election and if the man in the white shirt was his close friend; the applicant responded in the positive. In response to my observation that these photographs were provided to the delegate as evidence of him campaigning as an independent candidate during the 2015 parliamentary election, the applicant said that he had provided photographs in the support of that claim as well and did not explain why these photographs were provided as evidence of his campaign as an independent if they are in fact photographs of him and his close friend during an election a year prior.
When asked about the outcome of the 2014 provincial election, the applicant stated that his close friend did not win and that the SLFP came into power. In response to my questions about whether the applicant did anything more than assisting his close friend during the election, the applicant said that he helped other parties, like the SLFP. When referred to his evidence that the UNP and SLFP were opposing parties and asked how it was that he was a member of both parties and assisted both parties concurrently, the applicant said that he had friends in both parties and irrespective of their political affiliation he helped his friends. When asked if he had any evidence of his membership of these parties, the applicant responded in the negative.
The applicant claims that his political activities continued into the 2015 parliamentary election when he decided to contest the election as an independent. In his statement dated 22 August 2024, the applicant claims that during the 2015 election campaign he actively spoke out against the ruling joint UNP and SLFP government and that he received several threats against his life, and that [in] August 2015, he was assaulted by unknown men.
At the hearing, regarding his decision to run as an independent at the 2015 parliamentary election, the applicant said that he decided not to support the UNP and SLFP because they were corrupt and attacking university students, and he could not support their policies. Apart from general assertions that these parties were corrupt, the applicant was unable to articulate any further details about the corruption within the government or the specific policies he could not support. As noted above, the applicant and his family were in [Country] from August 2014 to February 2015, during a period when the applicant claims he was campaigning and actively speaking against the ruling government.
When asked if he faced any issues while campaigning as an independent candidate against the ruling parties, the applicant said that a few days prior to the election he was assaulted. He recounted the information presented in his written submissions and referred to the police report regarding this incident. When asked if anything else happened, the applicant made vague references to people in the campaign having told him that ‘they’ were trying to find him, and that after this incident he always had security with him.
When asked who the men who attacked him were, the applicant said that he believes they were from the opposition party. When asked which opposition party, the applicant said he guesses they were from the SLFP. When referred to his earlier evidence that this was one of the parties he was a member of and supporting before running as an independent and that he had friends within the party, the applicant said he could not be certain who the attackers were and that he just thinks they were from the SLFP. The applicant agreed that apart from speculating, he had no evidence to support his assertion that he was attacked by members of opposing political parties.
In discussing the police report provided in support of his claim that he was attacked [in] August 2015, I noted the document lacks a letterhead or any other features to indicate that it is an official document from the police in Sri Lanka. The applicant said that the police in Sri Lanka do not use letterheads. In observing that the document contains a stamp indicating that it was translated into English by the District Court of Colombo [in] September 2015, I asked the applicant why he got the report translated in English at that time. The applicant said that he got an English translation in case he needed it, although he could not express why he would have needed an English translation of the document a year after the claimed event.
Regarding the outcome of the 2015 election, the applicant said that he did not win the election and could not recall how many votes he received. He claimed that after the election he continued to operate his business and talked to people in his district as an independent to make them aware of what was happening, and that although he had UNP and SLFP membership, he distanced himself from the parties.
The applicant claims that in November 2016 the SLPP was launched, and he decided to support the SLPP. While the applicant was able to indicate that the SLPP was formed by the Rajapaksa family, his description of what it was about this party’s policies that made him support the party was general and vague. He stated that the SLPP policies were against corruption and privatisation of institutions and for development of the country. When asked about the party’s ideologies, the applicant said that the country was poor, the people were fed up and looked to this new party to change the situation.
When asked about how he supported the SLPP, the applicant said that he made financial donations and promoted the party’s ideologies. He explained that he was a supporter of the party and only became a member in January 2018 prior to his departure for Australia because there was an election at the time. When asked if anything happened to him while supporting the SLPP, the applicant said that around the end of 2017, he felt that people were following him and recounted the claimed September 2017 incident outlined in his written evidence. The applicant stated that he did not know who the attackers were, but they run him over with a car deliberately to injure him because he was involved in politics.
Regarding the police report in support of this claim, I noted that once again the document does not look like an official document provided by the Sri Lankan police and noted that it indicates that the document was translated into English on 5 February 2018, after the applicant’s departure from Australia. The applicant said that he could not recall when he got the report and that he asked his wife to obtain it for him.
The applicant claims that the last incident that caused him to fear for his safety and depart the country occurred on 4 January 2018. He recounted the information as provided in his written submissions and stated that after the incident, he told his wife and daughters to go to his wife’s mother’s house and he did not return home. When asked about the affidavits claimed to have been obtained after the incident, the applicant said that he did not go to the police in fear for his safety and that he went to see a lawyer who told him that because his life was threatened, he needed affidavits. When asked who he went with to see the lawyer, the applicant said with a few of his friends and that it may have been one or 2 days after the incident.
With reference to his evidence that he claims that he was fearful for his safety and did not return home, I noted that the copy of the SLPP membership card he presented at the hearing indicates that it was issued [in] January 2018, and asked why he went to the SLPP office to join the party when he had just been threatened with death to stop his political activities with the SLPP. The applicant said he needed proof that he was a member but was unbale to explain why he needed proof of SLPP membership if he was departing the country.
In discussing the affidavits, I noted that while they are from him and his friend, they are written in identical terms. The applicant said that the lawyer wrote them. I also noted that the affidavit refers to the applicant as a Buddhist and that this is contrary to the applicant’s evidence that he has been a practising Catholic from the age of 18. The applicant said that the lawyer must have made a mistake.
As discussed above and observed at the hearing, I found the applicant’s evidence about his motivation for engaging in politics and supporting various parties in the years prior to his departure from Sri Lanka problematic. Apart from making general statements referring to corruption within various political parties and the government in Sri Lanka, the applicant was unable to provide any meaningful details about the various party politics or his role within the parties.
While I found aspects of his evidence confusing, such as his claim that he was a member of opposing political parties and assisted opposing parties prior to his decision to contest the parliamentary election in 2015, I am willing to accept that the applicant had friends within the UNP and SLFP political parties, which were part of the coalition government at the time. I accept that as a businessman in the area, the applicant supported a friend during the March 2014 provincial election. I note that the applicant has provided photographs, which he confirmed were taken during the 2014 provincial election, showing him alongside his friend. I do not accept that apart from limited assistance provided to his friends, the applicant was an official member of the UNP or SLFP or that he had any active role within these political parties, or that he held political meetings. As noted above, while the applicant claims that he was a member of these parties, he has not provided any supporting evidence such as evidence of his membership or statements from his close friends. I am not at all convinced, and do not accept, that the applicant was a member of these political parties or that he actively engaged in politics or spoke against the government as claimed.
The applicant has provided various types of documentary evidence, such as his election identity card, flyers and gazetted notifications, which indicate that he ran as part of an independent group in the 2015 parliamentary election. Given that the applicant was a businessman and had friends who were involved in politics, I am willing to accept that he joined an independent group running for parliament in August 2015, and as per his evidence, the party was unsuccessful in securing any seats in parliament.
Given the nature of the applicant’s evidence, I am not persuaded that after the 2015 election, he actively participated in politics, spoke against the ruling government, or that he engaged in speaking to people and educated them about corruption within the government as claimed. The applicant was unable to articulate his involvement with any specificity and apart from general statements, he was unable to particularise how he engaged with people within his district and what he educated people about. It appears to me that while the applicant may have held views that the government was engaging in self-serving corrupt conduct and was not supportive of certain government policies, I am not satisfied that he was an active political figure and actively spoke against the government as claimed.
I accept that after the launch of the SLPP in November 2016, the applicant, as a successful businessman, made financial donations to the party. I do not accept that the applicant was actively involved in the party, and on his own evidence, he did not become a member of the party until days prior to his departure from Sri Lanka in January 2018. I do not accept that as a mere supporter of this party, the applicant faced any incidents or was attacked by members of the ’opposing parties’ as claimed.
In light of my findings about the nature of the applicant’s involvement in politics in Sri Lanka, I am not satisfied of the veracity of the claimed attacks.
As noted above, I have concerns about the authenticity of the documents claimed to be from the police in Sri Lanka. I do not accept the applicant’s assertion that the police in Sri Lanka do not use letterheads. The police reports not include any information, such as the name, location or contact details of the police station, nor any official features. Apart from the lack of any features that can support that the documents are official documents provided by the police, I found the applicant’s evidence about when or how he obtained them and why he obtained English translations of these documents, unconvincing. The affidavits, which are claimed to have been prepared by a lawyer a day after the claimed incident on 4 January 2018, are in almost identical terms, and I do not consider them as corroborative evidence in support of the claimed event.
As discussed with the applicant at the hearing, country information[2] indicates that document fraud in Sri Lanka is common and that asylum applicants from Sri Lanka have presented fraudulent documents in support of their claims. At the hearing, apart from maintaining that the incidents occurred and that the documents are genuine, the applicant did not provide any evidence or explanation to alleviate my concerns about the claimed incidents and the documentary evidence.
[2] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 18 December 2015; DFAT, ‘Sri Lanka - Country Information Report’, 24 January 2017; DFAT, ‘Country Information Report Sri Lanka’, 4 November 2019; DFAT, ‘DFAT Country Information Report – Sri Lanka’, 23 December 2021; DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
At the hearing, I also noted that the applicant’s wife and daughters have remained in Sri Lanka in Colombo where the claimed attacks are said to have occurred. I expressed that, on the applicant’s evidence, his family members have not been approached nor has anyone asked about the applicant’s whereabouts in the years that he has been absent from the country. I explained that this further suggested to me that he was not of any adverse interest to anyone in Sri Lanka. The applicant stated that he has no confidence that he will be able to lead a normal life in Sri Lanka. I find the applicant’s assertion baseless.

In addition, I noted that his lack of engagement with any political activities or support to his political associates in Sri Lanka since his departure over 6 years ago caused me concern about his claimed political profile in Sri Lanka and assertions that he was part of the political class in Sri Lanka. The applicant did not offer any comments in this regard.
Given my findings about the applicant’s political profile and limited participation in politics, which mostly involved supporting his friends and participating in the 2015 election as part of an unsuccessful independent group, I am not satisfied that the applicant was an active political figure in Sri Lanka or that he was targeted or attacked by unknown people who he speculates were members of the opposing parties. I do not accept that the claimed incidents occurred or that the applicant departed Sri Lanka in January 2018 due to fear for his safety.
Consequently, while I accept that the applicant’s wife and daughters, who remain in Colombo, moved with the applicant’s wife’s parents just prior to the applicant’s departure from Sri Lanka, I do not accept that this was due to fear for their safety or that they have been moving from place to place since the applicant’s departure from Sri Lanka in 2018 and remain fearful for their safety.
Overall, while I accept that the applicant had some limited involvement in politics in the years prior to his departure, I do not accept that he was an official member of the UNP, SLFP or an active member of the SLPP, that he offered these political parties continued or sustained support, or that he was or was perceived to have been part of the ‘political class’ or ‘privileged and sometimes wealthy’ people who engaged in politics, as submitted by his former representative. On the applicant’s evidence at the hearing, he joined the SLPP days prior to his departure from Sri Lanka to obtain proof of his membership, which I consider he believed he needed if he applied for political asylum in Australia.
I do not accept that the applicant departed Sri Lanka for the reasons claimed or that he applied for a protection visa in April 2015 because he was advised by his political associates that the situation in Sri Lanka was bad. I consider that the applicant applied for a protection visa in April 2015, just prior to expiry of his visitor visa, because he wanted to continue to remain in Australia and to obtain work rights to engage in employment.
On the evidence before me, I am not satisfied that the applicant had a political profile of interest to members of opposing political parties, or any other persons or groups, at the time of his departure from Sri Lanka in 2018.
Future harm - political opinion/views/support
At the hearing the applicant stated that since his arrival in Australia, he has not engaged in any political activities and has not spoken to anyone in Sri Lanka about politics. Given my findings about the applicant’s past political profile set out above and his lack of any engagement with politics in Australia, I am not satisfied that he has any desire or commitment to join any political parties or to actively engage in politics if returned to Sri Lanka.
At the hearing, I discussed country information about Sri Lanka’s current political environment and improvements around election violence and intimidation with the applicant.
Country information[3] indicates that while, in the aftermath of the end of the civil war in 2009, elections were marred with violence and voter intimidation, the situation has improved progressively over the years and since the applicant’s departure from Sri Lanka in 2018. More recent country information[4] before me indicates that while there were incidents of violence during the 2015 presidential election, they were relatively low compared to prior elections. Independent election monitors found no significant security problems with the running of the 2019 Presidential and 2020 parliamentary elections, even amid COVID-19 restrictions during the 2020 election.
[3] UN High Commissioner for Refugees (UNHCR),’UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka’, 21 December 2012; UK Home Office, ‘Sri Lanka March 2012’, 7 March 2012; International Crisis Group, ‘Sri Lanka: Tamil politics and the quest for a political solution’,1 November 2012.
[4] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 23 December 2021; DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
In addition, there are no laws or policies in Sri Lanka to discriminate on the basis of political opinion. The most recent 2024 DFAT report[5] indicates that Sri Lanka has a robust and diverse political landscape. Elections in Sri Lanka are generally free and fair, with peaceful transfers of power. Political parties, irrespective of their affiliations or ideology, can operate freely and contest elections and there is no evidence of systemic political discrimination against any particular group.
[5] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
As discussed with the applicant at the hearing, the information before me does not support a finding that the applicant will be harmed for reasons of his past political activities. Even if he were to engage in politics to the extent that he has in the past, country information does not indicate that he will face a real chance of serious harm for reasons of his political support for any particular political party or that he is at a real risk of any treatment that would amount to significant harm. While the applicant said that DFAT generalises and does not dive deeply into these issues, I do not accept that to be the case. As noted in DFAT reports, the information in these reports is drawn on DFAT’s on-the-ground knowledge and discussions with a range of sources in Sri Lanka and elsewhere and is based on credible open-source reports from various international organisations and local media.
In addition, as noted at the hearing, the SLPP, a party which the applicant claims he supported from its inception in 2016 and continues to support, is the largest political party within the Sri Lankan parliament. There is no indication that the applicant will be harmed for reasons of his past support for this party. While the applicant indicated that there is an election coming up in Sri Lanka, the information before me does not support that someone of the applicant’s profile is at a real risk of any harm for reasons of his political views or because of the upcoming election.
On the evidence before me, I am not satisfied that the applicant will engage in any political activities if returned to Sri Lanka. Even if he was to engage in politics to the extent that he has in the past, I am not satisfied that he faces a real risk of serious harm if returned to Sri Lanka now or in the foreseeable future, for reasons of his past limited political activities, his political views or support for the SLPP, or due to the upcoming election.
Returned asylum seeker
At the hearing the applicant confirmed that he departed Sri Lanka legally using his own passport, which has expired. I accept that the applicant departed Sri Lanka legally and is not in possession of a valid Sri Lankan passport.
Country information[6] indicates that Sri Lankans without passports can re-enter the country on a temporary travel document, also known as an Emergency Passport or a Non-Machine-Readable Passport, issued by diplomatic and consular missions and valid for re-entry to Sri Lanka. Given that the applicant is no longer in possession of his passport he may well be returning to Sri Lanka on a temporary travel document. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. DFAT is not aware of detainees being subjected to mistreatment during processing at the airport.
[6]DFAT, ‘DFAT Country Information Report – Sri Lanka’, 23 December 2021; DFAT ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
DFAT[7] reports that it is not a crime for a Sri Lankan to seek asylum abroad. Sri Lankans who fail to secure asylum in Australia return to Sri Lanka (Colombo Airport) on either commercial or charter flights. On arrival at Colombo Airport, failed asylum seekers go through immigration, where their identities are verified. For those returning on temporary travel documents, the process will take longer. According to in-country sources, failed asylum seekers returning on charter flights were processed much quicker, as their identities had been verified in advance.
[7] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
DFAT also reports[8] that depending on the circumstances of their departure from Sri Lanka (i.e. if they departed legally or illegally), personal history (i.e. if they have a criminal background in Sri Lanka) and whether they are travelling on temporary travel documents, failed asylum seekers may face further questioning from Sri Lankan Immigration, the State Intelligence Service, Navy Intelligence (SLNI) and the CID. These agencies check travel documents and identity information against immigration and intelligence databases and records of outstanding criminal matters. Returnees of particular interest are those who have been involved in organising or facilitating people smuggling ventures and those with outstanding court orders. This process should identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. DFAT is not aware of recent returnees being mistreated during processing at Colombo airport.
[8] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
As discussed with the applicant at the hearing, given that he departed Sri Lanka legally, does not have a criminal background in Sri Lanka or abroad, and has not engaged in any activities that would be of concern to the Sri Lankan authorities, it does not appear to me that he would be identified as a person of interest at the airport or subjected to further interrogation, arrest or detention. As expressed at the hearing, on the information before me, there is no indication that he would be subjected to mistreatment because of having resided in Australia for an extensive period of time or having sought asylum.
I also explained that country information indicated that Sri Lanka suffered its worst economic crisis in 2022, which had a widespread impact on the country resulting in shortages in essential items, high inflation and unemployment. However, the most recent DFAT report[9] indicates that the situation has now stabilised. Essential items are available, inflation is in single digits, the currency has appreciated, and power cuts have ended. I noted that the applicant has 2 properties in Colombo and has significant savings from which his wife and daughters receive an income. His wife and adult daughters remain in Sri Lanka. He has had significant employment experience, including operating successful businesses in Sri Lanka and has now worked in Australia for about 6 years.
[9] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
Considering the applicant’s background and circumstances, I am not satisfied that there is a real chance that the applicant’s capacity to subsist would be threatened or that he would otherwise face a real chance of persecution. The applicant stated that he would have to think about his next steps and did not make any further comments. I consider the chances of the applicant facing any issues that would amount to serious harm due to the country’s economic situation, his status as a returned asylum seeker or his extended absence from the country to be no more than remote.
Refugee assessment
In light of my findings above and considering the applicant’s circumstances and overall profile in the context of the country information cited above, I am not satisfied that the applicant faces a real chance of persecution, if returned to Sri Lanka now or in the reasonably foreseeable future, for any of the claimed reasons or arising on the material before me. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet the criterion under s 36(2)(a) of the Act.
Complementary protection assessment
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), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
As set out above, I accept that on arrival at the Colombo airport, the applicant will very likely be subjected to an investigation process to establish his identity and background. For the reasons explained above, I am not satisfied that there is a real risk that he would be identified as a person of interest or otherwise be harmed during this process. I do not consider that the treatment that the applicant may face during the arrival process amounts to a level of pain, suffering or humiliation required by the definition of torture in s 5(1) of the Act, nor cruel or inhuman or degrading treatment or punishment. I am not satisfied he faces a real risk of arbitrary deprivation of his life or being subject to the death penalty or tortured.
I am not satisfied that the applicant faces a real chance of serious harm for reasons of his past political activities, his political views or continued support for the SLPP, due to the upcoming election, or that there is a real chance that the applicant would be denied the capacity to earn a livelihood, such that his capacity to subsist would be threatened. The Federal Court[10] has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. For the reasons above, I am also not satisfied that the applicant faces a real risk of significant harm.
[10] MIAC v SZQRB (2013) 210 FCR 505.
I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant has not claimed, and there is no suggestion that, the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
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 4384

16 September 2024

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