2119900 (Refugee)
[2025] ARTA 1720
•14 July 2025
2119900 (REFUGEE) [2025] ARTA 1720 (14 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2119900
Tribunal:General Member M Brereton
Date:14 July 2025
Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 July 2025 at 10:34am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – original claim of political opinion – member and village organiser of political party – campaigned against opposing party’s actions after change of government – death threats, house burned and applicant abducted and tortured – later claim as member of community welfare organisation – participated in development projects and reported corruption to local authorities – anonymous threats and attack – incorrect information, fraudulent documents and significant differences between temporary and protection visa applications – consistent claims in second statement and at hearing – no supporting statements or documentation – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 December 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 17 November 2017. The delegate refused to grant the visa on the basis that they had serious concerns about the genuineness and credibility of the claims and found them to be fabricated for the purpose of applying for the visa.
The applicant appeared before the Tribunal by video on 25 June 2025. 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.
BACKGROUND
The applicant arrived in Australia [in] November 2017 as the holder of a Temporary Activity (subclass 408) visa, valid for three months. He applied for the protection visa shortly after his arrival.
Evidence before the Department
Protection visa application
The application for the protection visa states that applicant is not married and is a Sinhalese Buddhist from the central region of Sri Lanka. He provided a statement with his application that referred to being a political organiser who was targeted by powerful ministers from an opposition party.
I was a member of the former president of Sri Lanka Mr Mahinda Rajapaksa’s political party, United National Freedom Alliance and village level organizer for villages in [District] and strong supporter of then minister Janaka Bandara Tennakoon. After defeat of former president Mr Rajapaksa at a presidential election held on 8th January 2015, I was subject to constant death threats by powerful United National Party ministers in the [District], [Mr A] and [Mr B]. I raised my voice against killings and tortures carried out by said [Mr A and Mr B] against innocent opposition party members. Several times killing groups led by [Mr A and Mr B] attacked My home in [District] and burnt. On 10th October 2015 I was abducted by a group led by [Mr A and Mr B] and tortured for days and about to kill. On 16th October 2015 I was managed to escape from [Mr A and Mr B]'s torture chamber and put several police complaints at [District] police station against cruel, inhuman and degrading treatments extended on me by said [Mr A and Mr B]. I was hospitalized for two months due to my broken [body parts]. No investigation carried out by the police against said ministers as they are very powerful political leaders in the [District] and Sri Lanka. Since I have not stopped my voice against [Mr A and Mr B’s] government I am under constant death threats by them.
[Mr A and Mr B] are the powerful ministers in the present Government of Sri Lanka, and they are always trying to take revenge from me as I have raised my voice against killings of innocent opposition party members by said ministers.
Even though I sought protection from the Sri Lanka police and various government
institutions, none of the institutions failed to protect me as they were influenced by the said Ministers and specially, I was treated differently due to my political opinion and belief. [Mr A and Mr B] are operating a powerful network across the Sri Lanka and I strongly believe that if I return back to Sri Lanka I would be killed by killing groups patronaged by said powerful present government ministers of Sri Lanka [Mr A and Mr B] and present government will not protect me and will treat me differently as I raise my voice against political killings back by the government.
My home in [District] burnt and i was abducted on 10th October 2015 and tortured for days by killing groups lead by powerful ministers of the present government of Sri Lanka [Mr A and Mr B] and I was about to be killed. As I am a strong supporter of the previous government of Sri Lanka and raised my voice against killings, tortures and rapes carried out by present government ministers against opposition party members specially by said [Mr A and Mr B] I am continuously harassed under the present government of Sri Lanka. I have been treated differently due to my political opinion and belief and I have been subject to both physical and mental harm and degrading punishment since 8th January 2015.
I made several police complaints to police station of [District] and police headquarters of Sri Lanka with regard to abduction and torture carried out against me by said killing groups lead by powerful ministers of tile present government of Sri Lanka namely [Mr A and Mr B]. As I am a strong supporter of the opposition party of Sri Lanka and my political opinion is different from them none of the police complaints put by me were properly investigated and I was threatened by the police not put police complaints against the ministers of the Government and also against the government.
Sri Lanka is a small country, and it is useless of moving to another part of the country seeking protection and safety, as I could be easily relocated by my enemies As they are very powerful ministers in Sri Lanka and they are operating a powerful network and always try to shut down the voices against them. Killing groups operating by them are very powerful and also police is not entertaining any complaints against them fearing the political power.
Supporting documents
On 8 November 2021, the applicant provided a further statement to the Department. This statement did not refer to the 2017 claims and instead stated:
I studied at [School], [District]. My education was only up to G.C.E (Ordinary Level) and G.C.E (Advanced Level). Passed GCE Advanced Level as usual. Ever since I was a child, my ambition has been to explore the shortcomings of the general public in society and help them.
When I was in school, I was involved in public affairs as a member of the [Club] located at the school, And also contributed my service to projects such as cleaning and painting hospitals in [District], cleaning elders' homes and assisting children's homes.
After studying up to G.C.E (Advanced Level) at [School], I was involved in my father's business activities and helped each other with projects, both financially and physically, for the benefit of the general public in the community. That is, by involving in projects to improve the sanitation conditions of poor families living in the [Area 1].
After completing my schooling, I have been supporting my father's business since [Year]. My father passed away in 2002 and my cousins helped me continue my business. In 2010, the only house owned by the father had to be sold by me due to financial problems of my cousins. After that I stayed at my cousin's house in [City] and lived there helping him with his business, his business was to distribute [products] to [workplaces].
Around 2012, I joined hands with some of my dear friends to help financially and physically contribute to the welfare of the general public in the [City] area through an organization called the [Organisation].
I was the Chairman of this welfare organization and [Mr C] and [Mr D] were the Secretary and Treasurer.
We went to the backward villages 2 or 3 times a week and volunteer to help with public works in their area, such as concreting roads, improving water facilities, and rural development projects carried out by government local councils and government agencies. In addition, I contributed to projects to improve the sanitation of poor families.
We have contributed to the social service activities carried out in [Areas] in the [City] District and assisted and advised in preparing the necessary documents to commence those public activities.
There are many financial irregularities and financial frauds in the public welfare activities carried out by many local councils and other government agencies in Sri Lanka and there are many difficulties in dealing with them.
There were financial irregularities in many of the government projects in which our organization was involved. Many of the roads repaired were not up to standard. We had to face many life threats as we worked with the people of the area against this matters.
I have been receiving threats from people in the area not to participate in the welfare activities we have been carrying out since 2015, but later received several anonymous phone calls to my cousin's house where I was staying.
We had to face anonymous phone threats through corrupt government officials and local politicians involved.
That is, in December 2015, we received the first death threats and anonymous calls to my cousin's house.
My cousin complained to the [Police] on several occasions but coz we received anonymous phone calls no justice was done.
The day it was 15th November 2016 I visited [Mr C] who was undergoing treatment for his leg injuries I visited him indoor to help him to get his medicines and helped him financially too when I returned from his place two person on a motor bicycle approach me and attack me with some kind of acid and escaped due to this unfortunate incidence I had to undergo medical treatments for my minor acid injuries and I was badly disturbed for some times. Meanwhile, in January 2016, my mother [Ms E] also passed away. The reason for this was that she had a heart attack due to hearing about death threats and procrastinating.
In addition, [Mr C], who was the Secretary of our organization, visited [Area 2] in the first week of 2016 to oversee a welfare project, his right leg was badly damaged due to the attack, and he had to be hospitalized for several months for treatment.
I was devastated by the loss of both my parents and the constant death threats I received. The cousin in the house where I was staying and other members of his family were also reluctant to keep me in that house. Because they were so afraid that they too might have to lose their lives.
During this time, I lived in the homes of relative cousins. I was deeply disappointed with the life I had lived in the fear of constant death threats anonymously. I had the opportunity to be in Australia in October 2017 when I was living under really stress. Today I am staying in this country without any fear because I have proper security. My parents are not alive today and there is nobody in Sri Lanka to look after my safety. Therefore, it is my firm belief that living in this country is not a threat at all to my life.
The interview
The applicant attended a telephone interview with the delegate on 24 November 2021. The Departmental file indicates that he was to be assisted by his (current) legal representative at that interview, but the representative did not attend. At the interview, the delegate referred to information contained in the previous subclass 408 application. The Tribunal has listened to a recording of that interview and will consider this further below.
Summary of the delegate’s decision
The delegate had significant concerns that some information contained in the subclass 408 application is different to information in the protection visa application. The delegate also noted significant differences between events claimed in the 2017 statement and the 2021 statement. The applicant claimed that he was not aware what was in the 2017 statement and said that a former migration agent may have done wrong information. The applicant gave contradictory and confusing responses to other questions during the interview.
The delegate found:
Based on the evidence before me, I am unconvinced the applicant holds any type of imputed political profile. Furthermore, there is nothing to suggest the applicant holds any type of profile that would place him at a greater risk than any other Singhalese male in the Sri Lankan community. After consideration of all the information before me, I am of the view that the applicant has provided no substantive or credible evidence to support his application for protection and I find his claims relating to Sri Lanka are vague, generalised and farfetched. I found his account of the alleged death threats and acid attack to be lacking credible detail. I find the applicant has provided contradictory evidence to the Department regarding his marriage certificate, his employment and his claims for protection. These inconsistencies between his 2017 and 2021 statements raise serious concerns surrounding the genuineness and credibility of his claims, suggesting the applicant has attempted to mislead the Department. I find the applicant has fabricated his claims for the purpose of enhancing his chances of being granted protection in Australia and I do not accept the applicant was of any interest to any person or persons at the time he left Sri Lanka in 2017. Given my credibility findings, I find the account of events on which the applicant’s claims are based, to be false, and I will not assess them further.
Evidence before the Tribunal
On 17 June 2025, the Tribunal received an undated pre-hearing statement from the applicant. As noted further below, the applicant later indicated that some of this is wrong. The relevant portions are in bold and discussed further below:
The application was refused due to a lack of substantiating details, such as dates, locations, and supporting documentation. I strongly contest this decision and seek protection under the 1951 Refugee Convention and international human rights law.
Background of the Case
I was a member of Mr Mahinda Rajapaksa’s political party and an organizer for the party in my village in the [District]. The United National Party UNP won the election, defeating the government led by Mahinda Rajapaksa. I was subjected to constant death threats by unknown people, I suspect as the officers who were affected by my social works were the people behind the threat. The reason for the dispute was my voice against their malpractice of public funds. Unknown thugs attacked my home several times, and they burnt my house down. I was abducted on 10 October 2015 by an unknown group and tortured for six days. I managed to escape from the torture chamber on 16 October 2015 and made several complaints to the police against the cruel, inhumane, and degrading treatment. The police did not investigate because of the kidnaper’s political background. As a result of the torture, I was hospitalised due to a broken arm and leg.
Since I did not stop raising my voice against the corruption of the officials, I was under constant death threat, and they were always trying to take revenge against me. Even though I sought protection from the Sri Lankan police and various government institutions, these authorities did not protect me as the attackers influenced them. I am a strong supporter of the opposition political party, and I believe I was treated differently because of my political opinion and beliefs and my reactions to the corrupted system.
My ambition has been to explore the shortcomings of the public and help people since my childhood. In 1992, while involved in my father’s business I assisted with projects such as improving the sanitation conditions for poor families in the [Area 1]. I built a welfare group, together with some of my friends to help the people in [City]. We named it ‘[Organisation]. The society was a volunteer group of friends, and not a registered one. I was the chairman of the group; my friends, [Mr C] and [Mr D] were the secretary and treasurer. I assisted with social services funded by the local government institutions in [Areas], in the [City] district. I noticed there were many financial irregularities within government projects, and I believed local government and other government agencies were committing fraud.
Our society and I faced many life threats as we worked with the people in the area, uncovering these financial irregularities. I started receiving death threats from unknown people over the phone. They warned me against participating in welfare activities. My cousin complained to the [police] on several occasions, but the police did not do justice because the calls were anonymous. In November 2016, two riders on a motorcycle attacked me with acid. As a result of this attack, I had to undergo medical treatment for minor injuries. My mother had a heart attack from stress after hearing about the death threat for me in January 2016. My cousin was reluctant to allow me to stay at his house because they were afraid for their life. I had the opportunity to travel to Australia in October 2017 and decided to leave Sri Lanka due to the constant death threats.
Problem of the marriage certificate:
I applied for a visa through a migration agent. I have no idea of the rules and regulations for applying for a visa. I followed the agent's instructions. The agent instructed me to say that I was intending to marry. My statement in the PPV application in 2017 was true; I have never been married or in a de facto relationship. I did not get married. I told the migration agent that I was intending to get married. The delegate asked me about a marriage certificate. But I did not submit a marriage certificate. The name in that marriage certificate is not my wife’s; it was my cousin’s wife. I have an idea whether the migrant agent included fraudulent documentation in my statement mistakenly. I submitted a lot of documents that he requested. I did not know which document the agent had submitted with my application. The delegate said that ‘I can think of no logical reason why the migration agent would submit a fraudulent marriage certificate on behalf of the applicant, which states the applicant is married to his cousin’s wife.” The delegate is not wrong when the problem is considered, but something unbelievable has happened, whether I have provided truthful information regarding my situation in Sri Lanka.
Employment in Sri Lanka:
I have done several jobs in Sri Lanka. I have been [an occupation 1] [doing a job task]. No one can earn a living in my country [doing the job task], and I must do other jobs to earn day-to-day money. I have been involved in my father’s business since two thousand nineties. After my father died in 2002. My cousin helped me to continue my father’s business. I sold my late father’s house and gave money to my cousin because he was experiencing financial difficulties. After selling the house, I stayed in my cousin’s place, helping him with his business. His business was distributing [product 1s] to [workplaces]. Once I served as [Occupation 2] in the business named [Business name]. I did a buying and selling business [product 2] items as self-employment in 2021. As the delegate suggested, some of my information has missing and misinformed, this is because I sought assistance from a migrant agent to prepare my documents for visa. I gave the information to the agent, and he has submitted the application without verifying with me or confirming with me what was submitting with the application. The delegate finds my explanation to be weak and implausible, but I have no way to rectify the mistakes my agent has done, when he submits my documents.
Lack of details:
I was involved in social services from my school days. I was a member of the [Club]. With the experience in school days, I started a group of social work together with two friends. We named it “[Organisation]”, but it was not a registered organization. We did some social works in [Organisation] area using our own money and donations from our friends. There is no special qualification need in Sri Lanka to start such kind of voluntary organization, we did those social works as a hobby. We were not in need of website or other social media flatform because we did our social works personally. We did not maintain even an office for our society. We did not keep accounts or reports for our works because we did it in mutual understanding. If we have maintained some documentations, it was on the need of the people in the area, we helped them to prepare documents to interact with government and local authorities. The delegate does not accept my claims on the grounds that I have no documentations. The complaints regarding the reports were not submitted by me personally but through the people who were beneficiaries of the projects. The politicians started hate me because we revealed malpractice of the government funds by them. I received death threat in December 2015 and numerous times after that, until I left the country in October 2017. My cousin tried to complaint the police about the threats, but the police did not record the complaint because the police was under control of the corrupted government and local government officials. I did not think about keeping records for our works, threat of life, medical reports regarding the injuries from acid throwing, as I did not in idea to use them for visa in other country.
Return to Sri Lanka
If I were to return to Sri Lanka, I would be a target of my enemies again. I would be in danger of facing possible violence. On 21 September 2024, Anura Kumara Dissanayake (AKD) of the National People’s Power (NPP) won the first Presidential election held in Sri Lanka since the economic and political crisis of 2022, and the general election, and formed a new Government. The new government is fighting to control the corruption in the government offices but not gained success in that effort. I think the government or other authorities in Sri Lanka would not be able to protect my life if I return to my country.
Application of Refugee Laws and International Humanitarian Principles
a. The 1951 Refugee Convention According to Article 1A (2) of the 1951 Refugee Convention, a refugee is defined as someone who: • Has a well-founded fear of persecution • Is unable or unwilling to avail themselves of state protection
My case aligns with these principles. I have a credible fear of persecution due to my works against the corruption in the country. The supporters of the corrupted officials are targeting and interested in harming me. The authorities in Sri Lanka would not be able to protect me from the harm I would face if I returned to Sri Lanka. This substantiates my need for international protection.
b. Complementary Protection under International Human Rights Law
Article 3 of the Convention Against Torture prohibits the return of an individual to countries where they may face torture or inhumane treatment. If I go back to my country, I will be subject to inhumane treatment.
c. Non-Refoulement Principle
The principle of non-refoulement, enshrined in both the 1951 Refugee Convention and the International Convention on Civil and Political Rights (ICCPR), prohibits the return of individuals to a country where their life or freedom is threatened. The threat against me meets this standard.
Errors in the Decision-Making Process:
The decision maker does not believe claims regarding the threat I would face if I returned to Sri Lanka. The delegate does not accept my explanations such as I submitted only the required or essential information of the application, in my claims in PPV application in 2017 and my intention was to elaborate or give details at the interview. A reasonable time has passed since my first application in 2017 and the claims that I submitted in 2021.
My claims regarding the [Mr A and Mr B], had added by the person who translated my Sinhala statement in to English, and my English knowledge was not enough to understand the exact meaning of the English translation.
Some of my details have been mistranslated. The first migration agent didn’t assist me at all, and the second agent did help me, but at that time I had already lodged my application, and I couldn’t edit it. When I was preparing the application, I didn’t feel as if the migration agent was doing his job right, so I did not divulge all the information. But later, during a telephone call he told me that he did not include some information. In this regard, I think that the delegate’s conclusion regarding the lack of credibility of my claims, based on assumption rather than factual analysis.
The hearing
The applicant, through his representative, requested a video hearing. The applicant attended the video hearing on 24 June 2025. The applicant’s evidence and submissions are considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 issue in this case is the applicant’s fear of harm from people he reported for corruption. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant claims to be a Sinhalese citizen of Sri Lanka. He has provided a copy of his Sri Lankan passport as proof of his identity and nationality. He does not claim to have a right to enter or reside in any other country. The Tribunal finds that he is a Sri Lankan citizen and that Sri Lanka is the receiving country and country of reference for the purposes of this review.
Background to Claims
The applicant claims to fear harm in Sri Lanka because he exposed and reported corruption. The corrupt officials have threatened him in the past and continue to seek revenge.
The Tribunal first asked the applicant about his initial visa application for the subclass 408 visa in which he claimed to be [an occupation 1]. The applicant admitted that much the information in that application is false. He said that in November 2017 he was in fear of his life and needed to leave Sri Lanka for protection. A friend of his cousin’s introduced him to a person in Colombo who said that the quickest way to get out of Sri Lanka was to get a temporary visa for Australia. The applicant told the Tribunal that this person said the [specified] visa would be the easiest and the applicant’s chances would be improved if he told the Department he was married. The applicant admitted that he provided a false resume, a false marriage certificate, and false [occupation 1] abilities for the purposes of getting the visa.
The Tribunal asked the applicant about the application for the protection visa in 2017. He said that a person he met in Australia introduced him to someone who claimed to be a migration agent. That person met with the applicant and asked him some basic details about his background and why he had left Sri Lanka. The person prepared the application and asked the applicant to sign it. He did so but was not aware of the contents of the application or the claims. He said that he did not keep a copy of the application and when he submitted his statement in 2021, he was not aware that it was different to his application. The Tribunal asked if he had been assisted by an agent in 2021 and he said that he had a different agent. The Tribunal asked if he had shown the agent the 2017 protection visa application and he said that he had never had a copy of it.
The Tribunal put to the applicant that when he was interviewed by the delegate, he said that he did not know there was false information in the subclass 408 application, but now he admits that he did know about the false information and provided false documents. The Tribunal asked why he did not explain this when he was interviewed. He said that he was worried that it would affect his visa application if he did. He said that the information in his 2021 statement is true and correct.
The Tribunal asked the applicant why he had repeated part of his 2017 claims in his statement to the Tribunal, given he has now said they are not his claims[1]. The applicant checked the statement again and said that he had provided the wrong version to the Tribunal. He said that he did not rely on anything in the 2017 statement.
[1] The relevant paragraphs are marked in bold in the paragraphs above.
The Tribunal asked the applicant to explain exactly what happened that led to his fear of harm. He said that in 2015, he had a business in the [City] area of Sri Lanka, supplying [product 2s] and other equipment as part of a government program to improve access to drinking water. He said that some people could not afford the equipment and he and some of his business friends donated equipment to about four households. The local people trusted the applicant and talked to him about other problems, including a road that was supposed to have been repaired. The people said that money had been provided but nothing had happened, and the money was gone. They asked the applicant what could be done, and he went to the provincial officials and complained on behalf of the local people. The officials said that they would investigate but nothing happened and after a couple of months the applicant lodged a written complaint with the relevant department. He said that the department investigated the issue and after a while the road was repaired.
The Tribunal asked the applicant what happened next. He said that in December 2015, people called him on the telephone at his cousin’s house. The callers did not identify themselves but told him not to get involved in “these matters”. They said that his complaints are false and will harm people’s reputations so he should not complain anymore. They threatened to kill him if he made more complaints. He told the Tribunal that there were about six threats between December 2015 and January 2016. He only answered one call himself, but his cousin and his cousin’s wife answered other calls. The applicant said that he reported the calls to the police, but the police did not do anything.
The Tribunal asked what happened next. The applicant said that in November 2016, his friend was attacked and beaten up. The applicant said that the attack was meant for him. The Tribunal asked why he believed he was the target, and he said that the victim was riding the applicant’s motorcycle at the time. The Tribunal asked why someone would attack him in November, given the threats had stopped in the previous January. He said that the people could not find him, so they attacked his friend instead.
The applicant said that he visited his friend in hospital and was riding home when a motorcycle came up behind him. There were two men on the motorcycle with their faces covered. They did not speak to him, but they splashed some liquid on him. He felt it burning and knew it was acid. He said he did not go to the hospital because the hospital would have told the police, and the police would have interviewed him. He did not want to get involved with the police because he does not trust them anymore. The Tribunal asked about injuries or scars. He said that most of the acid was on his clothes, and he does not have any scars.
The Tribunal asked him how he knew that people had been looking for him when he was in hiding. He said that people have come to his cousin’s house looking for him twice, and once they followed his cousin. The people were masked and did not identify themselves. The Tribunal asked if the cousin had reported this to the police and the applicant said he made a complaint but there was no investigation, and the police would not give the cousin a copy of the complaint form.
The Tribunal put to the applicant that the attacks above are said to have occurred in November 2016. The Tribunal asked why the applicant did not decide to leave Sri Lanka until November 2017. The applicant said that he left then because he feared for his life because he had exposed corrupt activities. The Tribunal put to him that nothing had happened to him in the 12 months since the claimed attacks. The applicant said that people had been looking for him, but he had left the house and gone into hiding. He said he had been staying in temples and other places and moving around. The Tribunal asked him why he had not mentioned this part of his claim before, and he said that he did not have any proof of it and did not know whether or not it would be useful.
The Tribunal put to the applicant that these events occurred nearly nine years ago and has been in Australia since 2017. The Tribunal asked why the corrupt officials will still want to harm him now. He said that they have recently filed a court case alleging that he made false applications. A lawyer has told his cousin about the case, but the applicant does not know the details. The Tribunal asked whether he had asked his cousin for copies of the court paperwork and the applicant said that he has requested it but was told that copies of the case cannot be taken out of Sri Lanka. The applicant said that he could ask his cousin to give evidence to the Tribunal about this.
The Tribunal asked the applicant whether he would be able to return to another part of Sri Lanka and avoid the corrupt officials. He said that he will not be safe anywhere in Sri Lanka because they have political connections and still have a grudge against him. The Tribunal asked how they would know if he did return, and he said again that they have connections and will know if he returns and can find him anywhere. The Tribunal asked why he is considered so important to these people. He said that he is not personally of a high profile, but the complaints he made dented their reputations and that keeps them carrying on against him. He said that the new government is making more enquiries into corruption and the applicant is the only one who has lodged complaints against these officials, so they are angry and still have a grudge.
The Tribunal asked the applicant if he fears harm in Sri Lanka for any other reason or reasons. He said that he only fears harm from the people he reported against.
The Tribunal spoke asked if the applicant could obtain any evidence about the court case in Sri Lanka. He said that he did not have documents, but he might be able to get some. The Tribunal invited him to provide any further evidence or information by 11 July 2025.
On 30 June 2025, the representative advised:
Our client [the applicant] has informed us lost all his supporting documents relevant to his appeal.
Currently, [the applicant] is unable to provide supporting documentation to the Tribunal.
Neither the applicant nor his representative have provided any further information or comment to the Tribunal as at the time and date of this decision.
Claims considered
The Tribunal accepts the applicant’s evidence that the 2017 claims are false claims. The Tribunal has not considered any of the information in the 2017 statement further.
Credibility
The applicant has admitted to the Tribunal that he produced fraudulent documents and made false claims in his application for the subclass 408 visa. He has admitted that he told the delegate at the protection visa interview that he was unaware of that false information, because he was worried that it may affect his protection application. The Tribunal has significant concerns as to the applicant’s honesty and credibility and is mindful that the Australian migration scheme relies on the integrity of applicants to provide reliable and accurate information in the visa application process in order for the Department to assess the eligibility of applicants to meet the various visa criteria set out in the Act. The Tribunal is not making a finding on the subclass 408 application itself but does consider that the applicant’s conduct, in particular his attempt to distance himself from that false information at the protection visa interview, casts significant doubt on his reliability as a witness of truth.
Nevertheless, the Tribunal is mindful that the applicant is claiming a protection visa on the basis of what he says is a real chance of serious harm or a real risk of significant harm. The Tribunal accepts that the 2021 protection visa statement has been prepared with the assistance of a (different) representative and the applicant has provided consistent oral evidence at the hearing before the Tribunal. The Tribunal has considered the consequences to the applicant if his claims are discounted on credibility grounds. Ultimately, the Tribunal finds that this situation is finely balanced and has decided to extend the benefit to the applicant and will consider his claims as made in the 2021 statement and at the hearing.
Claims
The Tribunal accepts that:
a.The applicant worked in his local area in 2015, assisting villagers with a clean water project.
b.Some villagers told the applicant about corruption concerns, and he reported this up to the local authorities.
c.In December 2015 and January 2016, unknown people called the house where the applicant was living and said he should not make complaints. The applicant took one of these calls himself.
The applicant claims that his friend was attacked in November 2016, having been mistaken for the applicant. The friend was riding the applicant’s motorcycle at the time. The Tribunal asked the applicant if there had been any threats after January 2016 and he said no. The Tribunal asked why people would suddenly want to attack him in November 2016. He said that the people could not find him, so they attacked his friend. The Tribunal takes into account the applicant’s evidence that he has only made the one complaint at the end of 2015. He does not claim, nor is there any evidence indicating, that he made any further complaints or took other actions that would lead to him suddenly being targeted at the end of 2016. The Tribunal also considers it is not plausible that people who wanted to harm the applicant and knew where he lived (as they had been calling the telephone at the house) would not have taken more direct steps than attacking the wrong person on a motorcycle. The Tribunal accepts that the friend was injured in some form of accident, but it is not satisfied that this had anything to do with the applicant or any adverse profile that the applicant may have had with any person or persons.
The applicant claims he was the victim of an acid attack after visiting his friend in the hospital. He said unknown people rode past him and splashed acid on him. The applicant believes these were people linked to the powerful people he had reported on. The Tribunal has noted above that there is no apparent reason for the powerful people to suddenly want to act against him nearly 12 months after the complaint was made. In any event, even if the powerful people were looking to take revenge on him for some reason, the Tribunal considers it is not plausible that they would do so via a chance attack in the street, given that they knew the applicant’s address. The Tribunal is prepared to accept that unknown people splashed a liquid on the applicant but is not satisfied that the incident was triggered by, or otherwise related to the applicant’s complaint against the powerful people. The Tribunal finds that on the evidence and information before it, this incident was not directed by the powerful people, triggered by the corruption complaints, or otherwise targeted at the applicant personally for any of his claimed reasons.
The Tribunal put to the applicant that he remained in Sri Lanka for another 12 months before leaving. The applicant said that he had left his cousin’s house and was living in hiding in temples and other places. The Tribunal asked the applicant why this claim was not made in his application or at the interview with the delegate. The applicant said that he had no proof of this and did not think it would be useful. The Tribunal views having to leave a home and live in hiding as a significant part of a claim to fear harm. The applicant has made other claims without “proof” or supporting evidence and the Tribunal does not accept that he would not have raised such a significant event for the reason claimed. The Tribunal is not satisfied that he has provided a reasonable explanation for why this claim was not raised before the delegate made the decision and finds that this claim is not credible. It does not accept that the applicant was living in hiding and moving around. The Tribunal does not accept that his cousin received threats about the applicant while the applicant was in hiding or at any other time since December 2016. The Tribunal does not accept that his cousin tried to file police reports. The Tribunal finds that the applicant remained in Sri Lanka for 12 months after the claimed incidents and was not subject to any further threats, violence, or harassment.
The applicant claims that the powerful people have now filed a court case against him. He told the Tribunal that a lawyer had told his cousin about this, but he had no documentary evidence of these proceedings. The Tribunal invited him to obtain and provide evidence, such as a letter from the lawyer. As noted above, the applicant has not provided any further evidence and states only that he “has lost all of his supporting documents”. The Tribunal does not accept that a legal case has been filed against the applicant.
The Tribunal does not accept that the applicant has been of any ongoing adverse interest to the powerful people, or any other person or persons, because of his corruption reports, since January 2016. The Tribunal does not accept that he or anyone else was targeted for that reason in November 2016. The Tribunal does not accept that he had to live in hiding before departing Sri Lanka, or that a legal case has been filed against him.
The Tribunal finds that the applicant is not of adverse interest to any person or persons in Sri Lanka because of his corruption report.
The Tribunal has accepted that the applicant was splashed with an unknown liquid in 2016 but has found that this was not a targeted attack on the applicant for any reason. The Tribunal acknowledges that this would have been frightening for the applicant and that he suffered minor injuries. However, he remained in Sr Lanka for another 12 months and no person or persons threatened him, harmed him, or harassed him in that time. The Tribunal finds that while the motivation is not known, the incident was a “one-off” event that occurred nine years ago. There is nothing in the information before the Tribunal indicating any reasons other than the corruption issue (which the Tribunal has found was not the motive) why the applicant may be subject to ongoing interest from the persons responsible for this incident. The Tribunal is not satisfied that there is any more than a remote, and therefore not a real chance that the applicant will face harm of any kind arising from this incident.
The applicant does not claim, and the evidence before the Tribunal does not indicate, that the applicant may face harm or adverse interest for any other reason or reasons, now or in the reasonably foreseeable future, should he return to Sri Lanka. The Tribunal is not satisfied that the applicant faces a real chance of harm for any reason or combination of reasons, now or in the reasonably foreseeable future, should he return to Sri Lanka. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a)
Complementary Protection
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). A non-citizen may satisfy this criterion if they are:
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.
The Tribunal has found above that the applicant does not face a real chance of harm for any reason or combination of reasons, now or in the reasonably foreseeable future, should he return to Sri Lanka. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[2] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3] Having regard to this, and for the same reasons as given above, the Tribunal finds that the applicant does not face a real risk of harm for any reason or reasons, now or in the reasonably foreseeable future, should he return to Sri Lanka. The Tribunal is therefore 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 the applicant will suffer significant harm.
[2] (2013) 210 FCR 505
[3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
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)(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(s) of hearing: 25 June 2025
Representative: Mrs Madhu Warnakulasuriya
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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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