2201986 (Refugee) - [2025] ARTA 2171

2201986 (Refugee) [2025] ARTA 2171 (16 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2201986
Tribunal:General Member M Brereton
Date:16 September 2025

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
(i)the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 16 September 2025 at 11:34am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – Muslim – imputed political opinion – suspected involvement or association with Muslim extremism – Tamil ethnicity – father’s shop targeted and burnt – arrested, tortured, and sexually harmed – accused of drug smuggling and extremist criminal activity – no ongoing adverse profile with the authorities – long delay in applying for protection – relied on finishing course of study and obtaining residency – applied for protection after student visa expired – consistent claims – relative of person previously detained and questioned under terrorism legislation – real chance of being detained for questioning – pattern of behaviour – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 January 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Sri Lanka, applied for the visas on 4 July 2017. Only the first named applicant (the applicant) has made claims in relation to the visa. The applicant claims that he has been arrested, tortured, and sexually harmed because of his ethnicity, religion, and suspected associations. The delegate did not accept the applicant’s claims as credible and refused to grant the visas. The applicants have applied to the Tribunal for review of that decision.
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 13 August 2025 and 2 September 2025 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of interpreters in the Tamil (Sri Lankan) and English languages.
BACKGROUND
The applicant and the second named applicant claim to be citizens of Sri Lanka. They married in Sri Lanka in 2011. They last arrived in Australia as holders of a student visa (the applicant) and dependant (second named applicant). The third, fourth, and fifth named applicants are children of the first two applicants. Each of the child applicants was born in Australia. The third and fourth named applicants hold Sri Lankan passports.
Evidence before the Department
Protection visa application
The applicant made claims in the application and via a statement of claims:
·He is a Tamil speaking Sri Lankan Muslim from Kandy, in the central province of Sri Lanka.
·His father owned a [business] known as ‘[Business 1]’. This business was burnt down by the ‘Sinhalese racist elements and thugs’ in 1990.
·In 2005, the applicant and his cousins [Cousins A and B] started their own [business]. The applicant was in charge of managing the finances of the business, including the income and expenditure.
·‘Threats were made’ by Buddhist monks in Kandy when the monks found out that they were selling foreign [items] among the local people.
·The applicant travelled to Colombo frequently for business and became 'known among the business circles'.
·The ‘Buddhist monks and thugs’ who burnt his father's business decided to also ruin the applicant's business. Within a few months of starting the business, the Criminal Investigation Department (CID) entered his house and arrested him. He was detained in [Prison A].
·In [Prison A] he was tortured and forced to admit he was importing and transporting narcotic drugs from [Countries 1 and 2] to other parts of Asia on behalf of the Liberation Tigers of Tamil Eelam (LTTE) and had been earning a ‘huge amount of money’ from them.
·He was held in the ‘midst of the drug convicts and drug addicts of [Prison A]’ where he was mentally, sexually and physically abused.
·His father secured his release from the prison on the condition that the applicant would leave the country soon.
·After his release from prison, he was sent as a student to Australia and decided to study hard to obtain permanent residency status in Australia. Before he left Sri Lanka, his father became weak and fell sick. His father passed away and the applicant had to leave the country as soon as possible.
·The applicant feared returning to Sri Lanka due to the war but after it finished in 2009, his mother told him that it would be safe to return to Sri Lanka.
·The applicant travelled to Sri Lanka in November 2009 and returned to Australia in February 2010.
·He returned again to Sri Lanka in December 2010 and was married [in] February 2011. His cousin [Cousin A] attended the wedding and told the applicant he should consider returning to Sri Lanka permanently. He returned to Australia in April 2011.
·In October 2011, [Cousin A] asked the applicant to visit Sri Lanka again due to a 'business proposal’. [Cousin A] said the applicant could establish the [business] once again in Kandy and that [Cousin A] would join the applicant as a partner.
·The applicant travelled to Sri Lanka in September 2011 in order to open the [business] with [Cousin A]. However, the applicant had to return to Australia in November 2011 due to 'visa problems'.
·In April 2012, the applicant decided to return to Sri Lanka 'in order to see the possibilities of settling down in Sri Lanka permanently'.
·His cousin [Cousin A] met the applicant at the applicant's in-law's house. [Cousin A] informed the applicant that he was 'working along with [Mr A] in a joint business venture', importing drugs ‘with the help of the Ministers’. [Cousin A] informed the applicant he should not worry about the CID or police any further.
·While the applicant was with [Cousin A] at this time, CID officers 'entered and arrested' the applicant and took him to the fourth floor of the CID building where he was beaten and starved for two days.
·The CID accused the applicant of dealing in drugs for the LTTE in the past and said he would be imprisoned permanently along with former LTTE cadres. The CID stated they had witnesses who would testify as to the applicant’s involvement in the ‘LTTE drug ring’.
·[Cousin A] managed to secure the release of the applicant from prison. [Cousin A] told him if he moved to Batticaloa and worked for [Mr A] no one would touch him and that if he refused, [Cousin A] would not be able to help him from the authorities.
·The applicant fled Sri Lanka and decided never to return. He was convinced he was a wanted person with the ‘immigration officers’. He returned to Australia in 2012.
·In August 2012, his wife returned to Sri Lanka to give birth to their child. While in Sri Lanka, the applicant's wife informed the applicant [Cousin A] was 'arrested by police' and was questioned regarding the applicant's whereabouts.
Pre interview submissions and documents
On 15 November 2021, the applicant provided a letter stating that the original written statement contains some errors. The applicant provided details of these errors, and a 20-page amended statement of claims. The applicant also provided copies of news and media articles.
The amended statement of claims included claims that:
·When his father heard the applicant was leaving Sri Lanka, he became sick. He died [in] December 2006, before the applicant departed Sri Lanka on [in] December 2006.
·His cousin [Cousin A] was arrested by the police in June 2019 and was found to be an ‘active member of the National Thowheed Jamath (NTJ) and frequently travelled to [Countries 3 and 4] to meet the ISIL[1] group.’
·The applicant’s mother was questioned by CID officers about the applicant’s whereabouts and his relationship and involvement with [Cousin A].
·The CID officers told the applicant’s mother they have evidence to suggest the applicant, along with Muslim youths in Kandy, ‘travelled to [Countries 3 and 4] to meet ISIL representing NTJ and had conspired to bomb churches and hotels in Sri Lanka’.
·The CID officers said they plan to charge the applicant and ordered his mother to hand over the applicant to them on his return to Sri Lanka.
·[Cousin A] was released from prison in December 2019.
·[Cousin A] informed the applicant's mother that [Mr A] has 'close contacts with the police and army officers' and [Mr A’s] men are 'ready and willing to give evidence' to the CID against the applicant. [Cousin A] informed the applicant's mother the applicant would be arrested on his return to Sri Lanka, as [Mr A’s] ‘agents’ are monitoring Muslims entering Sri Lanka from overseas’.
·The applicant's sister and brother-in-law were arrested at the airport on their return to Sri Lanka from [Country 5] in 2021. The applicant’s brother-in-law was interrogated by the CID as he was 'suspected of having connections with ISIL members and to have worked for ISIL while in [Country 5]’.
The interview
[1] Islamic State of Iraq and the Levant, a proscribed terrorist group.
The applicant attended an interview with the delegate on 16 November 2021. The applicant was not assisted by a migration agent or representative. The interview was conducted with the assistance of an interpreter in the Tamil and English languages. The Departmental file contains an audio recording of this interview, and the Tribunal has listened to that recording.
Summary of the delegate’s decision
The delegate accepted the applicant’s claims as to identity, ethnicity, and religion. The delegate found the applicant’s evidence about his arrests and mistreatment to be vague and unconvincing, and did not accept that the applicant had been arrested, detained, and had suffered mistreatment and sexual assault. The delegate did not accept that the applicant had been the subject of false allegations of supporting the LTTE, supporting Muslim extremists, or being involved in drugs or other criminal activities. The delegate also found that the delay between leaving Sri Lanka in 2012 and making the protection application in 2017 was another factor casting doubt on the applicant’s claims. The delegate did not accept that the applicant has been arrested, detained, harmed, or suspected of criminal or extremist activities in Sri Lanka. The delegate considered country information in relation to Tamils and Muslims, having regard to the applicant’s lack of any political or other profile. The delegate found on that information that the applicant does not face a real chance or real risk of relevant harm should he return to Sri Lanka.
Evidence before the Tribunal
Pre-hearing submissions
On 6 August 2025, the applicant provided a written prehearing submission responding to the delegate’s decision and its findings. Much of this submission contains cut and paste extracts from media and other reports.
The applicant’s submissions in relation to the delegate’s decisions are:
·The Department said that my responses were vague, unconvincing and lacking in detail when I was talking about my arrest and detainment but I don't remember the exact dates because at the time of the interview, this incident had happened to me over 16 years ago. This was too long ago for me to remember the exact dates and how long I was detained and when I was released. I was also very traumatised by what happened that I couldn't recall the dates.
·The Department did not fully understand that as I am a person who had suffered from sexual abuse and rape, even talking about those memories makes me feel that so much shame and embarrassment so when I was asked questions about that, I would answer but I would also not dwell on those details and talk about the specifics because it traumatised me. Without understanding my situation and the trauma I had experienced, the Department said it had serious concerns with the credibility of my claims about my arrest by the CID and when I was detained at [Prison A].
·The Department didn't understand that because of my father's health, I had to look after him and be there for him. Therefore, even though I was scared for my safety and the Sri Lankan authorities could have come after me, I chose to stay even though it was dangerous because my father is important to me and being with him to support him while he was sick was my duty as his son. This was another reason the Department had a credibility concern and this is because they didn't understand my situation.
·The Department said I didn't provide a specific date for my arrest in 2012 but I told them that it happened in April 2012. The Department didn't consider that it had been nearly 10 years since the arrest so I don't remember the exact day but I did remember the month and year. I should clarify that my wife went to Sri Lanka before the birth of our child and her parents looked after her and supported her before the birth of our child.
·The situation in Sri Lanka has not changed. I am still in danger as the Sri Lankan authorities falsely accused me of supplying drugs to the LTTE and being involved in the LTTE drug ring. The CID officers falsely accused me of travelling to [Countries 3 and 4] to meet ISIL representing National Thowheed Jamath (NTJ) and had conspired to bomb churches and hotels in Sri Lanka. [Cousin A] told my mother that the Sri Lankan authorities continue to monitor Muslims that are returning to Sri Lanka from overseas as [Mr A] agents are still operating in Sri Lanka.
·I explained to the Department that I was arrested by the CID while [Cousin A] was with me. The Department said that [Cousin A] should have prevented my arrest as he had political influence but what they didn't understand is that [Cousin A] did have political influence because he was able to arrange for my release. Without him, I would not have been released and the only reason I was released is because of [Cousin A’s] personal connection with [Mr A].
·The Department said that the delay in applying for protection visa supported their concerns regarding my overall credibility. I didn't apply for a protection visa as I thought I would be able to stay in Australia through another visa however, as I was not able to get another visa that would allow me to stay in Australia permanently, I had no choice but to apply for the protection visa so that I could be safe from the Sri Lankan authorities.
·The Department said that 'no evidence before me indicating the applicant was or is involved in activities or other actions that would raise his profile and bring him to the adverse attention of the Sri Lankan authorities' but as I have explained to them many times, I am still in danger as the Sri Lankan authorities falsely accused me of supplying drugs to the LTTE and being involved in the LTTE drug smuggling. The ClD officers falsely accused me of travelling to [Countries 3 and 4] to meet ISIL representing National Thowheed Jamath (NTJ) and had conspired to bomb churches and hotels in Sri Lanka. For these reasons, I have a profile as a Muslim that would bring me to the adverse interest of the Sri Lankan authorities if I return to Sri Lanka.
·My family members and I have been telephoning often, and they told me that the Muslims in general are continuing to face harassment and torture from the police and army and the new President Anura Kumara Dissanayake, failed to stop the security officers from harassing Muslims in suspicion of their involvement in the war with Isreal. They were mostly taken for interrogation and questioned whether they recently traveled overseas and involved in military training with ISIS. My brother in law [Brother-in-law A] returned from [Country 5] permanently with my sister to settle in Sri Lanka and to register my father's old business under his name. [Cousin A] threatened [Brother-in-law A] not to use my fathers' business name [Business 1]. [Brother-in-law A] started his own business ignoring [Cousin A’s] threats, and a year after he established his own business under a new business name [Business 2], CID officers arrested [Brother-in-law A] and accused that he was working for the ISIS, smuggling drugs into Sri Lanka from [Country 5] and that he was receiving funds from ISIS to build Mosques and Madrassas in Muslim areas in the Eastern province of Sri Lanka. During the interrogation, [Brother-in-law A] was asked where I was hiding in [Country 5] and when I would return to Sri Lanka. The CID visited our house and spoke to my sister [Sister A] and asked her how long [Brother-in-law A] and I had been doing drug business for ISIS in [Country 5]. My sister told them that I was in Australia, but they maintained that they have information that I had been travelling to [Country 5] to transport drugs into Sri Lanka with ISIS militants. They said that I had been smuggling drugs for the LTTE in the past and now working for the Muslim terrorist organisation ISIS in overseas countries and in Sri Lanka promoting terrorism.
·[Brother-in-law A] was released after nearly a year by the Muslim Member of Parliament who intervened and bribed the officers for his release. [Brother-in-law A] told me that [Cousin A] and [Mr A] were behind his arrest because the police officer who released me told the Member of Parliament that [Mr A] complained as to his and my involvement in ISIS drug ring. [Brother-in-law A] said that I was lucky to be away from Sri Lanka otherwise, I would have spent rest of my life in prison. …. [Brother-in-law A] said that the new President encouraged the police officers to arrest, interrogate and torture Muslims under the Prevention of terrorism Act, who were suspected of having ISIS affiliated links. As I had been already suspected of LTTE and ISIS affiliation, it would be impossible to convince the CID after [Cousin A] and [Mr A] dabbed me in.
…
·As a prisoner of conscience, who is imprisoned because of my race, sexual orientation, religion, and my political views, can you please assess me whether I meet the complimentary protection criteria, as I will face a real risk of significant harm on my return to Sri Lanka.
The hearings
The applicant attended two in person hearings. The first hearing was held on 13 August 2025 and the second hearing was held on 2 September 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 whether the applicant faces a real chance or real risk of relevant harm if he returns to Sri Lanka. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicants have provided identity documents including passports and birth certificates for the child applicants. They claim to be citizens of Sri Lanka and do not claim to have a right to enter or reside in any other country. The Tribunal finds that the applicants are citizens of Sri Lanka, and that Sri Lanka is the country of reference and receiving country for the purposes of the review.
The applicant claims, and the Tribunal accepts, that he is an ethic Tamil and a Muslim, and that his family in Sri Lanka are Muslim.
Relationships
The applicants have provided copies of a marriage certificate that shows the first and second applicant are married. They have also provided copies of birth certificates for the third, fourth, and fifth applicants. The Tribunal accepts that the first and second applicants are married and that the remaining applicants are their children.
The Tribunal finds that the second applicant is the spouse of the applicant. The Tribunal finds that the second applicant is a member of the family unit of the applicant as provided for in Regulation 1.12(4)(a) of the Migration Regulations 1994 (the Regulations).
The Tribunal finds that the third, fourth, and fifth applicants are dependant children of the applicant. The Tribunal finds that they are members of the family unit of the applicant as provided for in Regulation 1.12(4)(b).
Section 5(1) of the Act provides (as relevant here) that a person is a member of the same family unit as another person if either is a member of the family unit of the other. The Tribunal finds that the second, third, fourth, and fifth applicants are members of the same family unit as the applicant.
Claims - General
As noted above, only the applicant has made claims and provided evidence. He has provided substantial evidence of his life and experiences in Sri Lanka but in summary, he claims to fear harm:
·     From the Sri Lankan authorities because of a real or imputed political profile as a Tamil and a suspected supporter of the LTTE.
·     From the Sri Lankan authorities because of a real or imputed political profile as a Muslim and a suspected supporter of Muslim extremists.
·     From the Sri Lankan authorities because of false allegations that he has been involved in illegal activities and his association with [Cousin A].
·     As a Tamil and a Muslim in Sri Lanka.
·     From [Cousin A] because of an unpaid debt.
The applicant’s submission to the Tribunal also refers to fearing harm because of his ‘sexual orientation’. At the hearing on 2 September 2025, the applicant confirmed that he meant harm because of previous sexual assault. He said that he is not suspected and does not fear that he will be suspected of being homosexual or bisexual. The Tribunal understands this submission to be a fear of harm (including psychological harm) linked to previous sexual assaults while in custody.
Credibility
The Tribunal has had the advantage of two in person and lengthy hearings with the applicant. The applicant struggled with some specific dates but was able to give approximate and consistent time frames. His evidence was consistent across both hearings, and he was able to answer questions readily. He displayed considerable distress when dealing with the sexual assault claims. He was able to differentiate between things that he knew about himself, and things that he had heard from others. The Tribunal did not get the sense that he was embellishing or overstating his claimed experiences, nor do his claims appear to have changed or been embellished since he made the application for the protection visa. The Tribunal has no other concerns with the applicant’s evidence or presentment at the hearing and has formed the view that he has been honest in presenting the facts of his experiences. The Tribunal considers that other aspects of his evidence, such as the reasons he attributes to the authorities, are his personal beliefs. The Tribunal does not draw any inferences adverse to his credibility from any findings it makes as to the plausibility of those beliefs.
Claims - Chronological
Attack on shop
The applicant claims that in 1990, his father’s shop was targeted and burnt because his father was Muslim. The applicant said that he was very young and was not present at the event. He does not know if his father was in the shop at the time and all he knows is that his father told him it was burnt down by Buddhist monks and thugs. The applicant does not know if any other businesses were attacked or damaged. He said that his father went to [Country 6] to work in around 1995 because there was no point in Muslims trying to open and run businesses in Sri Lanka. His father returned in around 2000 but did not attempt to reopen the business. He told the applicant that it was not possible to reopen because he expected more attacks.
Country information before the Tribunal notes that in the 1990s, as a consequence of discrimination, marginalization and violence by an overtly Sinhala nationalistic state, there was a rise in Tamil nationalism in Sri Lanka. A fundamental aspect to the expression of Tamil nationalism was the need for a Tamil homeland. While some actors envisioned this homeland for all Tamil-speaking people including Muslims, Muslim leaders, particularly the Sri Lanka Muslim Congress (SLMC), fought for a distinct identity, separate to the Tamils, citing their ethnic and religious differences. The LTTE disagreed with the assertion of these differences. Although in recent years most attacks against Muslims have been from Sinhala Buddhist factions, the Muslim community has also been targeted by the Tamils, particularly the LTTE in 1990 in their quest to assert monoethnic dominance in the North and Eastern provinces of the country during the civil war.[2]
[2] Amnesty International, ‘From Burning Houses to Burning Bodies – Anti Muslim Violence, Discrimination, and Harassment in Sri Lanka’, 2021, at p 15.
The applicant was very young at the time he claims the shop was attacked. He was not present and only knows what he has been told by his father. He believes it was a Sinhalese Buddhist mob and the motive was a dislike for Muslims. The country information cited above indicates that there was violence between Sinhalese and Tamils, Sinhalese and Muslims, and Tamils and Muslims at this time in Sri Lanka. The Tribunal accepts that the applicant’s father had a business in Kandy that was attacked and burnt in 1990. The Tribunal accepts that this may have occurred due to the family’s ethnicity and/or religion.
Arrest 2005
The applicant claims that he and his cousins started up a [business] in 2005. He told the Tribunal that he operated [the business] in Kandy. His cousin [Cousin A] sourced [items] in [Country 1], and his cousin [Cousin B] travelled around Sri Lanka doing distribution. The applicant said that he received some telephone calls from people who complained that Muslims should not be running businesses. He thinks these were the “same type of people” who had attacked his father’s shop in the past. He said that he and the [business premises] were not attacked, but some time after the threats began, he was arrested. He said that he was at home when the police arrived and accused him of being involved in smuggling drugs from [Countries 1 and 2]. He does not know if anyone else was arrested at this time because his cousins were not in Kandy. He believes he was targeted because of animosity, because he has never been involved in smuggling drugs or any other criminal activities.
The applicant said that he was taken to a big prison where he was kept in a dormitory room with other prisoners who were drug dealers, smugglers, and similar. He was questioned about drugs and accused of supplying drugs and support to the LTTE. While he was in the prison he was attacked, beaten, and subjected to sexual assaults by other prisoners. He said he does not know if the authorities were aware of what was happening but even if they were, they would not have come to help. He said that his father was able to get him released but he does not know what his father did to arrange this.
While there had been a reduction in violence between the LTTE (the majority of whom were Tamils) and the Sri Lankan state following a ceasefire in 2002, that ceasefire broke down in 2005.[3] During the civil war which followed, many Tamils were monitored, harassed, arrested and/or detained by security forces, particularly in the north-east. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner.[4] The Tribunal has accepted that the applicant is a Tamil, and it is plausible that a young Tamil male operating a business involving imports and country wide distribution may have been of interest to the Sri Lankan security forces at this time. It is plausible, and the Tribunal accepts, that the applicant was arrested, taken to a criminal detention facility, and questioned about any involvement with the LTTE. It is also plausible, and the Tribunal accepts, that the applicant suffered ill treatment at the hands of the security forces, as well as from other prisoners. The applicant’s demeanour at the hearing when discussing this aspect of his evidence is consistent with his claim that he suffered assaults that he finds shameful and embarrassing to talk about. The Tribunal accepts that the applicant suffered assaults, including sexually based assaults, from other detainees at this time.
Leaving Sri Lanka
[3] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Sri Lanka’, 2 May 2024, at [2.2].
[4] DFAT, at [3.12].
The applicant said that his father arranged for him to get the necessary documents to leave Sri Lanka and come to Australia. The applicant was not arrested, detained, or subjected to any interest by the authorities when he left. He said that he returned to Sri Lanka on three occasions between 2006 and 2011 to visit his family and did not have any problems at those times. The Tribunal accepts this evidence.
The Tribunal notes that this period coincides with the final phase of the civil war and the Tribunal considers that if the applicant had any real or imputed LTTE association or support profile arising from the 2005 arrest, he would have been the subject of questioning, investigation, and/or other adverse interest when transiting the airport. Further, he does not claim that the authorities ever came to the family home looking for him or asked about him at any time during this period. This leads the Tribunal to find that the applicant was not of ongoing interest to the Sri Lankan authorities for any real or imputed connection to the LTTE, or for any other reason, arising from the 2005 incident.
[Cousin A]
The applicant returned to Sri Lanka in 2011 to get married. He told the Tribunal that his cousin [Cousin A] attended the wedding, and the applicant found out that [Cousin A] had been arrested recently. [Cousin A] did not tell the applicant what he was arrested for, but did say that he has an ongoing business that is going well and invited the applicant to restart [his previous] business. [Cousin A] said that he has a connection with a [successful businessman] and was in partnership with them. [Cousin A] said that he wants to be a partner in the applicant’s business and help him. The applicant asked about [Cousin A’s] business and [Cousin A] said he was moving drugs. The applicant told [Cousin A] that he did not want to be involved in that type of business. [Cousin A] said that if the applicant joined him, he will be protected by the [businessman]. The applicant declined the invitation and returned to Australia. The Tribunal has noted above that it has no concerns as to the applicant’s credibility and accepts the above is his recollection of the conversation with [Cousin A].
Arrest 2012
The applicant returned to Sri Lanka in 2012. He said that when he arrived at the airport, he was questioned by immigration officers. They asked him what he had been doing, why he had returned, and he felt like he was being questioned as someone returning for the first time. The officers asked him where he was going to stay, and he told them he was going to his in-laws’ house in Colombo.
A few days later [Cousin A] came to see him at the house in Colombo. [Cousin A] was there only a short time when the police arrived and told the applicant they had come to arrest him because of the previous accusations about drug dealing and supporting the LTTE. He said that the police did not arrest [Cousin A]. The applicant was blindfolded and taken to a prison where he was tortured, but he was only there for two or three days because [Cousin A] arranged his release. The applicant said that [Cousin A] arranged this through the people that he knew. The applicant said that he booked a ticket the next day and left Sri Lanka to return to Australia. He was not questioned or detained when leaving Sri Lanka.
The applicant believes that he was arrested in 2012 because of the 2005 incident but the Tribunal has found above that the applicant was not of any adverse interest to the Sri Lankan authorities arising from the 2005 arrest. If the Tribunal does accept that he was detained and questioned in 2012, the fact that he left Sri Lanka through the airport without any official interest also indicates that he had no ongoing adverse profile with the authorities. The Tribunal does consider it coincidental that the arrest occurred when [Cousin A] was present and did ask the applicant if he had any involvement in illegal activities with [Cousin A]. The applicant was adamant that he was not involved in any such activities. On the other hand, his evidence at the hearings is consistent with the evidence and claims he made during the protection visa interview and there is nothing else before the Tribunal calling that evidence into question. The Tribunal finds itself unable to determine a motive for the 2012 detention but also unable to say with any level of satisfaction that it did not occur. The Tribunal considers that in this case it is appropriate to give the applicant some benefit of the doubt and will accept that he was detained and questioned in 2012; however, he was released and allowed to depart Sri Lanka without any further interest. The Tribunal finds that he was not of any adverse interest to the Sri Lankan authorities when he departed Sri Lanka in 2012. The Tribunal also finds that he was not the subject of any outstanding charges when he left Sri Lanka.
PV Application
The applicant said that he did not hear anything more [from Cousin A] after 2012. He told the Tribunal that he was fearful of returning to Sri Lanka but did not apply for the protection visa because his idea at this time was to finish his course of study and obtain residency. He told the Tribunal that his student visa expired in 2017 and by then he also had two children born here in Australia. He said that he was fearful for himself and for his family and that is why he applied for the protection visa in 2017. The Tribunal considers this is a reasonable explanation for why he did not apply for the protection visa until 2017.
Events in 2019
The applicant said that in around June 2019, his mother and sister told him that [Cousin A] had been arrested. His mother said that the police had come to the applicant’s family’s house to talk to [Cousin A’s] parents, who were visiting at the time. She told him that [Cousin A’s] mother mentioned to the police that the applicant had done business with [Cousin A] in the past and the police asked the applicant’s mother about the applicant. They told her that they know he had been supplying drugs to the LTTE and that he also has a connection with ISIL. They told his mother that they can arrest him as there are charges against him.
The applicant has heard that [Cousin A] spent four or five months in prison before being released. The applicant has heard that [Cousin A] has returned to the Eastern Province to continue working with [Mr A] and the other [businessmen] there. [Cousin A] comes to Kandy on regular occasions and when he does, he goes to the applicant’s mother to ask for money. [Cousin A] said it is to repay him for the money that he used to get the applicant out of prison in 2012. [Cousin A] told the applicant’s mother that the applicant owes [amount] rupee (about AUD $[amount]) and has threatened to harm the applicant if he ever returns and does not pay the money.
The Tribunal accepts that [Cousin A] was arrested and later released. The Tribunal accepts that the police came to the applicant’s family home because [Cousin A’s] parents were there. The Tribunal accepts that the applicant believes [Cousin A’s] mother identified the applicant as being involved with [Cousin A]. The Tribunal has found above that the applicant was not the subject of ongoing adverse interest because of the events in 2005 and 2012. The Tribunal does not accept that the police told his mother that he was under suspicion of any connection with the LTTE or ISIL at this time. However, the applicant has provided evidence that [Cousin A] has been involved in illegal activities and has been arrested on at least two occasions. It is plausible, and the Tribunal accepts, that if the police did find out that the applicant was a former business partner, they may have an interest in questioning him and may have told his mother that they will do so.
Events in 2021

The applicant claims that his sister and brother-in-law returned to Sri Lanka from [Country 5] in 2021. The family has told him that they were both detained at the airport on arrival and questioned about their activities in [Country 5]. He says that his sister was released after about a day, but his brother-in-law was held in detention for some months. The brother-in-law was accused of being a Muslim extremist supporter.
The most recent Australian Department of Foreign Affairs and Trade (DFAT) report for Sri Lanka notes the following in relation to Muslims in that country:
Muslims report they have been unfairly targeted since the Easter Sunday terrorist attacks in April 2019, including in the form of large-scale arrests under the PTA[5] and other official practices perceived as discriminatory. A State of Emergency imposed immediately following the attacks prohibiting clothing covering one’s face in public was widely understood to target the Muslim community. According to media reports at the time, some shops, hospitals, courts and universities prevented women wearing the hijab (which does not cover the face) from entering their premises. The State of Emergency lapsed on 22 August 2019. In-country sources reported that anti-Muslim rhetoric and violence increased in the wake of these attacks: Muslims were assaulted and denied access to transport, Muslim businesses and homes were attacked by mobs, and Muslim businesses were boycotted in a campaign orchestrated by Sinhala Buddhist nationalist groups. In March 2020, the government adopted a mandatory cremation policy for COVID-19 related deaths. Islam forbids cremation, and the policy was highly traumatic for Muslims. It was reversed in February 2021.
Around 2,300 people (mostly Muslim) were arrested in connection to the Easter Sunday attacks for suspected terrorism offences under the PTA, some on the basis of limited or tenuous evidence. Most have been released. In-country sources estimated that 115 remained in jail without charge in April 2023, although numbers are difficult to verify. In 2020, the UN Special Rapporteur on freedom of religion or belief reported that many Muslims arrested under the PTA struggled to secure legal representation, including by Muslim lawyers fearing reprisals. According to in-country sources, lawyers and families had limited access to PTA detainees and, where visits were granted, may be subjected to strip searches.
In-country sources told DFAT that Muslims previously arrested under the PTA but since released, and the families of those who remain in detention, were monitored by the state and shunned by the Muslim community. In-country Muslim sources reported that people were reluctant to associate with or employ Muslims previously arrested under the PTA, for fear of attracting adverse state attention. In some instances, such Muslims and their families were completely rejected by their communities as terrorists.
In-country Muslim sources reported that the most acute pressures experienced by their community following the Easter Sunday terrorist attacks had subsided, and that Muslims were now generally able to practise their faith freely. However, in-country Muslims also reported that they continued to experience harassment, intimidation and disinformation, and said the threat of arrest under the PTA was used to threaten the community …
In-country Muslim sources reported ongoing monitoring, including for signs of extremism. Those that face the highest risk of monitoring included: the families of people in detention for suspected terrorism offences under the PTA and their legal representatives; people previously arrested under the PTA but since released; community activists, particularly those that engage with representatives of the international community; and organisations that receive funding from Islamic countries. Monitoring can take the form of telephone calls, visits and physical surveillance. In-country Muslim sources told DFAT that mosques and madrassas were monitored by the State Intelligence Service (SIS) and the TID [Terrorism Investigation Division, a branch of the Sri Lankan Police].
…
The Muslim community remains the frequent subject of online hate speech and disinformation, including with respect to its perceived population growth, wealth and links to terrorism. NGOs documented incidents of threats, discrimination and violence against the community in 2022 and 2023, including property damage and propaganda. Sinhala Buddhist nationalist groups, particularly the BBS [Bodu Bala Sena, a Sinhala Buddhist nationalist group] continue to target Muslims, especially though hate speech. In-country sources reported that state protection from these groups was inadequate.
DFAT assesses that Muslims face a moderate risk of official and societal discrimination, in the form of harassment and monitoring by security forces and organised disinformation campaigns by Sinhalese nationalist groups. Muslims face a low risk of official or societal violence, including in Colombo, where the community is well established and integrated, and are broadly free to practise their religion. Muslims suspected of extremist views and/or association with groups deemed to be extremist face a high risk of monitoring, arrest and detention, including under the PTA.[6]
[5] Prevention of Terrorism Act
[6] DFAT, at [3.32]-[3.39].
The applicant’s brother-in-law and sister were returning to Sri Lanka after a significant period of time spent out of the country and living in [Country 5]. Given the security climate referred to above, it is plausible, and the Tribunal accepts that they were detained at the airport and questioned about their travel and intention. The Tribunal also accepts that the brother-in-law was of interest to the security forces because he is a Muslim male who has been outside Sri Lanka, and who was returning at a time of heightened security concern. The Tribunal accepts that the brother-in-law has been detained, questioned, and held in custody for a substantial period. While the evidence is that he has now been released, the country information cited above indicates that he may still be of ongoing interest to the Sri Lankan authorities.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal has considered all the above and does not accept that the applicant is of any adverse interest to the Sri Lankan authorities, or that he faces a real chance of harm from the Sri Lankan authorities or security services, for any reason or reasons relating to his Tamil ethnicity, any real or imputed links to or support for the LTTE, or for any other reason arising from his detention and questioning in 2005 and 2012. The Tribunal does not accept that he is the subject of any outstanding charges or investigations arising from the detention and questioning in 2005 and 2012.
The Tribunal does accept that the applicant is a Muslim male and that his brother-in-law was detained, questioned, and held in custody by the Sri Lankan authorities in 2021. The Tribunal accepts that if the applicant were to return to Sri Lanka, he will be identifiable as a Muslim male relative of a person previously detained and questioned under terrorism legislation. The applicant will also be identifiable as a Sri Lankan Muslim who has been outside Sri Lanka for many years. While the DFAT information refers to a relaxing of parts of the security regime faced by Muslims in Sri Lanka since the immediate aftermath of the 2019 attacks, Muslims suspected of extremist views and/or association with groups deemed to be extremist are still assessed as facing a high risk of monitoring, arrest and detention, including under the PTA. When considered against the applicant’s personal profile, this leads the Tribunal to the view that there is a real chance he will be detained for questioning should he return to Sri Lanka.
If the applicant is detained and questioned, it is important to acknowledge that this will be in relation to suspected terrorism or extremist sympathies/views/support. DFAT assesses that (emphasis added):
Risk of torture perpetrated by the military, intelligence or police has decreased since the end of the civil war, but torture continues to be used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, it is difficult to determine the exact prevalence of torture; however, multiple domestic and international sources consider it to be common.
DFAT assesses that the general population face a low risk of torture. DFAT assesses that people arrested and detained for suspected criminal activities face a moderate risk of torture. This is especially the case for people suspected of involvement in the drug trade and terrorist activities. [7]
[7] DFAT, at [4.29]-[4.30].
The Tribunal finds that the applicant will face a greater risk of torture or similar mistreatment than an ordinary person detained for questioning. The definition of refugee under the Act speaks of a real chance while the DFAT report speaks of a moderate risk. DFAT defines moderate risk to mean DFAT is aware of sufficient incidents to suggest a pattern of behaviour. The Tribunal has come to the view that given the applicant’s personal profile, including his link to his brother-in-law, sufficient incidents suggesting a pattern of behaviour in this context point to a more than remote chance. The Tribunal is satisfied that the chance of the applicant facing harm is not distant or unlikely and that it is therefore a real chance.
The Tribunal is satisfied that the applicant faces a real chance of harm if he returns to Sri Lanka. This harm will be inflicted on him because of his profile as a Muslim male who has been outside Sri Lanka and is suspected of involvement or association with Muslim extremism. The Tribunal finds that the reason for the harm is the applicant’s religion and his real or imputed political opinion and is therefore for one or more of the reasons given at s 5J(1)(a) of the Act. The Tribunal finds that the harm will be inflicted for the essential and significant reason of his religion and/or imputed political profile (s 5J(4)).
The Tribunal has referred to country information above which leads it to the view that there is a real chance that the harm faced by the applicant will include torture and/or significant physical ill treatment. The Tribunal finds that this is serious harm as contemplated by s 5J(5) of the Act. The Tribunal finds that the harm inflicted will be systematic and discriminatory, in that it will be harm inflicted because of his religious and/or political profile (s 5J(4)(c)).
The Tribunal finds that the agents of harm will be elements of the Sri Lankan security forces. The Tribunal finds that the chance of harm extends to all areas of Sri Lanka and that the applicant will be unable to access effective protection from the Sri Lankan authorities (s 5J(1)(c), 5J(2)).
The Tribunal finds that the chance of harm arises from the applicant’s existing personal religious and family profiles. There are no reasonable steps that he can take to modify his behaviour so as to avoid the chance of harm (s 5J(3)).
Having regard to all the above, the Tribunal finds that the applicant has a well-founded fear of persecution, now or in the reasonably foreseeable future, should he return to Sri Lanka.
Conclusions
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The other applicants have not raised any claims, and the Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
The Tribunal has found above that the second, third, fourth, and fifth applicants are all members of the same family unit as the applicant and the Tribunal is satisfied that the second, third, fourth, and fifth applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
The first applicant claims, and the Tribunal accepts, that he does not have a right to enter and reside in any other country. There is no information or evidence before the Tribunal indicating that any of the other applicants have a right to enter or reside in any other country. The Tribunal finds that s 36(3) does not apply to the applicants.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
·(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date(s) of hearing:  13 August 2025 and 2 September 2025.
Representative:
None

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.
…