2202883 (Refugee)
[2022] AATA 4149
•28 September 2022
2202883 (Refugee) [2022] AATA 4149 (28 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2202883
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Brendan Darcy
DATE:28 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 September 2022 at 11:57am
CATCHWORDS
REFUGEE – Protection visa – Sri Lanka –political opinion – long-term involvement with the United National Party – a witness to a historic serious crime – applicant had voluntarily returned to Sri Lanka – extensive criminal record – psychological health complications – past addiction and substance abuse – imputed with being an informant or spy on behalf of the Sri Lankan authorities – applicant had provided conflicting, inconsistent and contradictory information over time – Tribunal is not satisfied that the applicant is at risk of serious harm –credibility concerns – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act, s 2A
Migration Act 1958, ss 5, 36, 56, 57, 65, 189, 420, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZRSN v MIAC [2013] FCA 751Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2022 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 citizen of the Democratic Socialist Republic of Sri Lanka (Sri Lanka), applied for the visa on 11 January 2022. The delegate refused to grant the visa on the basis that the delegate did not find the applicant’s claims to be credible, and that he did not have a genuine fear in returning to Sri Lanka.
The applicant appeared before the Tribunal on 4 May 2022 to give evidence and present arguments. This hearing was adjourned.
A resumed hearing was held on 7 July 2022. This hearing was adjourned.
A subsequent and third hearing was held on 18 July 2022.
The evidence at each hearing was provided via an audio-visual platform between the Tribunal’s Melbourne facilities and facilities at the Christmas Island Immigration Detention Centre (CI-IDC).
Each hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was not represented by a registered migration agent or legal practitioner throughout this application for review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claims to be born on [date] in Colombo, the capital city of Sri Lanka.
The following identity documentary evidence was provided by the applicant to the Department:
· An uncertified copy and translation of the Sri Lankan birth certificate of “[name]”, born on [date]. This document was registered on [date];
· An uncertified and untranslated copy of a Sri Lanka National identity card;
· An uncertified copy of a driver’s licence issued by the Victorian authorities in the name of “[name]”, date of birth [date]; expiring [in] September 2014;
· A certified copy of a letter [issued] by [a named Medical Officer] and two scientists. This letter is dated 23 January 2015 and it confirms that the applicant “[name deleted] (Sri Lanka passport Number [deleted]) is the biological father of [Mr A]” (for the purposes of this decision, [Mr A] is to be referred to as the applicant’s son or the applicant’s biological son).
· An uncertified copy of a Sri Lankan police clearance certificate issued [in] February 2016, which confirms that the applicant has not come to the adverse attention of the Sri Lanka police from [date] to [February] 2015;
· An uncertified copy of a Sri Lankan Certificate of marriage between the applicant and “[Ms B]” ([Ms B] is to be referred to as the applicant’s third wife or spouse for the purposes of this decision). The document states that the marriage took place [in] January 2015. An uncertified copy of the Certificate of Marriage is also provided in Sinhala;
· An uncertified copy of the Sri Lankan Citizenship Certificate of the applicant’s child. This document identifies the applicant as the child’s father, and the child’s nationality as Sri Lankan. This document was issued [in] September 2020;
· A certified copy of the birth certificate pertaining to the applicant’s son issued by the Births, Deaths and Marriages Registry in the State of Victoria. This document indicates the applicant as the person to whom the birth certificate was issued [in] April 2013.
Applicant’s first visit to Australia
Prior to his successful student visa application, the applicant unsuccessfully applied for an Australian visitor visa in 2007. The applicant was, nonetheless, granted a Class TU Subclass 573 Student visa on 23 June 2008 for the purposes of higher education. He arrived in Australia [in] June 2008. At the time, the applicant was married to his first wife.
The visa permitted the applicant to remain in Australia until 15 March 2012. His visa expired on that date and he subsequently became an unlawful non-citizen.
The applicant returned to Sri Lanka in 2008 for the claimed reason of the birth of his second child.
The applicant came to Australia to study for a [a qualification] in Melbourne, to be followed by a [degree] at the same college. His enrolment in the [first qualification] was deferred and the applicant explained to the Tribunal that he had returned to Sri Lanka for about three weeks because his then wife had a child (he and his then wife later divorced). The applicant did not return to [the college] and later, on 7 April 2009, his enrolment was cancelled.[1]
[1] This is outlined in Decision Record 1213106
The applicant alleged that he then enrolled at [another institute] for a [qualification] to run from April 2009. The applicant said he did not attend regularly and not at all after 2010, yet he remained in Australia with a student visa until that visa expired on 15 March 2012. The applicant befriended an Australian citizen in Melbourne and the friend's sister offered to marry him with a view to him obtaining a spousal visa. The applicant, surmised the Member, was frank in his evidence that this marriage was a contrivance. The applicant subsequently commenced a relationship with half-sister of his ex-wife, who was then aged [age]. The young woman became pregnant to the applicant and gave birth to a [son].
In or around May 2012 the applicant was charged by Victoria Police with a number of offences. He was located by police [in] July 2012, and was remanded in custody. He stated at a Tribunal hearing[2] that he spent 41 days on remand. He was subsequently sentenced to a 12-month community-based order which the applicant explained involved him doing eight hours of community work a week. He was released from custody but was then detained by the Department under s.189 of the Act. The applicant was charged with reckless conduct endangering life, driving in dangerous manner, possession of a dangerous article, and assault with a weapon.
[2] 3 September 2012
On [date] August 2012 the applicant was sentenced [to] a 12-month Community Corrections Order, and he was released from custody. The Departmental file [also] indicates that that applicant had a stated intention to return and kill the victim in the associated criminal matter.
On [date] August 2012 the applicant was detained under s. 189 of the Migration Act 1958 and transferred to [Immigration Detention Centre].
On 22 August 2012 the applicant lodged a partner visa application on the basis of his marriage to an Australian citizen, [name deleted], whom he married in August 2011 (for the purposes of this decision, [name deleted] is to be referred to as the applicant’s second wife or spouse). He simultaneously lodged a first associated bridging visa application.
However, on 28 August 2012 this first bridging visa application associated with his Partner Visa application was refused. The applicant applied to the Migration Review Tribunal (MRT) for review of the decision to refuse the bridging visa application. The MRT affirmed the decision to refuse to grant the applicant a bridging visa on 5 September 2012.
The applicant’s partner visa application (on the basis of him being in a genuine and ongoing spousal relationship with the applicant’s second spouse) was refused on 26 September 2012.
On 26 October 2012 the applicant applied for a protection visa (Class XA Subclass 866) and his second bridging visa. This application for a bridging visa was refused on 30 October 2012.
A delegate refused to grant the protection visa to the applicant on 7 December 2012. The applicant’s claims at the time of application included holding a well-founded fear of persecution on the basis of his involvement in supporting a major political party in Sri Lanka, the United National Party (UNP), and that he was abducted and tortured by members of the rival People’s Alliance (PA) party.
On this same day (7 December 2012) the applicant applied to the Refugee Review Tribunal (RRT) for review of this decision.
On 7 March 2013 the applicant applied for a third bridging visa associated with his application for a review at the RRT.
On 8 March 2013 the RRT affirmed the delegate’s decision not to grant the applicant a protection visa on 8 March 2013. In that decision, the then presiding Member found the applicant lacked credibility, and did not accept his claimed political membership, his claims of past incidents of torture and other harm or that he was a person of interest, should he return to Sri Lanka.
On 12 March 2013 the applicant’s third bridging visa application was refused by the Department.
The applicant applied to the Migration Review Tribunal (MRT) on 14 March 2013 for a review of the decision to refuse to grant him his third bridging visa application.
The Tribunal affirmed the decision not to grant the bridging visa on 20 March 2013 (AAT No: 1303937). (The decision record was provided to the applicant in March 2022 by the Tribunal). The Tribunal notes that the applicant’s representative submitted that the applicant had no children with the applicant’s second wife in Australia, that he was in the process of a divorce, and that he was in a de facto relationship with an Australian woman with whom he has a [son].[3] The applicant then went on to state that he certainly had no intentions of departing as he had a son in Australia.[4]
Initial protection claims and written, oral, documentary evidence between 2012 and 2013
[3] para 44, Decision Record of 1303937.
[4] para 48, Decision Record of 1303937.
As mentioned above, on 26 October 2012 the applicant applied for a protection visa (Class XA Subclass 866).
A copy of the RRT’s decision record dated 7 March 2013 to the Tribunal affirmed the delegate’s decision not to grant the protection visa, was provided to the applicant in May 2022. Below is a summary of the applicant’s claims and evidence arising from that initial set of protection claims.
In a statutory declaration dated 25 October 2012, the applicant stated that his problems began following high school, when he became a United National Party (UNP) supporter. The applicant claimed that one of his best friends was the personal assistant to a UNP Minister and the applicant’s family had been UNP supporters for a long time. The applicant further claimed he was campaigning trying to get people to support the party. Due to his close relationship with the Minister, he was living at the Minister's home for considerable periods of time. The applicant's friend's father disappeared, and his friend fled overseas. The applicant had received death threats early on after he left school. For this reason, he spent most of his time living at the Minister's house, or living with his friend.
The applicant became afraid when he saw that others around him who were doing similar work, being slowly killed. However, he continued his work regardless of the threats.
At some point in time before the applicant was married to his first spouse in 2006, he was taken by a rival political party, the People’s Alliance (PA) and held captive for approximately two weeks. They were trying to get information out of him about the UNP Minister. The applicant would not tell them anything and he was tortured in many ways including electrocution, beating and strangulation. He was held upside down for lengthy periods and was only released when he pretended to have lost his mind. They dumped him on the side of the road, near the parliament building.
When the applicant married in 2006, his permanently resided in his first wife’s home in [a suburb]. Eventually assailants located the applicant's new address and came to kill him. The applicant's first wife was upstairs at the time and she noticed people coming over the fence. The applicant ran downstairs and tried to lock the door and keep it shut. They eventually forced their way through and attacked him with machetes and knives. Before they cut him up, they interrogated him about his friends who were working for the Minister but the applicant did not tell them anything. They left him lying on the ground covered in blood. The applicant managed to drive himself to the hospital but fainted at the hospital door due to the large amount of blood loss. The applicant received roughly 200 stitches, the majority of which were [deleted].
The applicant was told that he would need to remain in hospital for three months but was afraid that these people would come back and finish him off. He left the hospital and went to live with his mother-in-law in [Town 1]. He then immediately applied to come to Australia.
The applicant was seeking protection from the government and those involved with the current political party in power. They have connections and the ability to find him wherever he goes in Sri Lanka. The applicant believed that if he returned to Sri Lanka he would be killed. He would be attacked by [an individual] and those loyal to the President. The applicant was working directly with the UNP Minister and running campaigns, and was heavily involved in political activity which posed a threat to the current administration. The applicant feared that he would be killed but also that he would be tortured for information.
The applicant was forced to go back to Sri Lanka for approximately two weeks at the beginning of November 2008. He did not want to return but his wife (who was due to give birth) told him that she would refuse to go through labour if he did not return. The applicant believed that she would die if he did not go back and there would be no one to look after his two daughters. He fled again as soon as he possibly could.
The applicant provided to the Department:
· A letter dated [November] 2012 from [a Member of Parliament];
· Medical records from [a] Hospital in the applicant's name indicating that he was admitted to hospital on 22 April 2008 with multiple cut injuries, and discharged 24 April 2008. He was sutured and given antibiotics, and the plan was that he be reviewed in a week's time to have his suture's removed;
· Photographs of the applicant at meetings.
The applicant was interviewed on 28 November 2012 by the delegate. At the interview, the applicant insisted he supported the UNP because his friend worked for the Minister.
In a submission dated 30 January 2013 the applicant's agent submitted the applicant fled Sri Lanka based on his fear of death and severe hardship due to political persecution. He had long-term involvement with the United National Party (UNP), and had been attacked and almost killed by members of the United People's Freedom Alliance (PA).
The applicant appeared before the Refugee Review Tribunal on 4 February 2013 to give evidence and present oral submissions.
According to the decision record for that protection visa, the applicant was asked when he first thought that his life was in danger, and unable to return to Sri Lanka. He said that when his partner visa was rejected, he spoke to his parents and they warned him not to come back to Sri Lanka. It was put to the applicant that his file seemed to indicate that his partner visa was refused on 26 September 2012.
The applicant submitted supportive documents at the hearing:
· The original photographs, copies of which had been previously submitted;
· UNP membership receipts;
· Certificate of registration for a [car] showing the transfer of registration. There is no registration number on the certificate. The certificate indicates that the registration of the vehicle was transferred to his father on 29 December 2006 and then his father transferred it to the applicant on 27 July 2007;
· [Company] Identity card dated 17 July 2003, and an enlarged photocopy of the same;
· Medical record from [a] Hospital dated April 2008;
· Letter dated [November] 2002 addressed to the applicant's father from the Minister of Justice appointing his father as a Justice of the Peace;
· Letter of recommendation dated 6 August 2002 from [a] Minister [regarding] the settlement of refugees to [another Minister] regarding the applicant's father becoming a Justice of the Peace;
· Copy of the applicant's father's registration as a Justice of the Peace dated [July] 2003;
· Original copy of letter already supplied from [an MP] dated [November] 2012;
· Police report dated [November] 2012 certifying that the applicant lodged a complaint regarding damage to one of his vehicles, claiming individuals assaulted him, and forcibly entered his residence, inflicting damage to his properties on 9 July 2006;
· Extract from information book of [a] police station dated 9 April 2004 where the applicant reported that he had engaged in political activities for the UNP. He was chased and his vehicle forcibly stopped, and he was assaulted. He was threatened that they would kill him if he did not stop working for the UNP; and
· Photocopies of photographs depicted damage to a white car purporting to be dated July 2006.
On 13 February 2013 the Tribunal forwarded to the applicant a letter pursuant to s 424A of the Act inviting him to comment on certain information. On 21 February 2013, the Tribunal received a response to that letter.
The applicant voluntarily departed Australia in July 2013.
The applicant’s second visit to Australia
In September 2013, the applicant’s third spousal partner and their shared biological son joined the applicant in Sri Lanka and lived with him there for almost two years. In January 2015, the applicant formally married his second spouse in Sri Lanka. The applicant’s second spouse and his son returned to Australia in August 2015. In March 2015, the applicant applied for a provisional partner visa offshore. His married spouse sponsored the visa. A Subclass 100 partner visa was granted to the applicant in August 2017 and the applicant re-entered Australia in the same month.
On arrival, the applicant said he discovered that his second wife had commenced a new relationship with another man. The applicant said that he initially stayed with friends until the applicant was arrested and taken into custody.
On 17 January 2020, the applicant was notified of the decision to cancel his partner visa and asked to make representations as to the reasons the mandatory cancellation of the visa should be revoked under section 501(3A) of the Migration Act. This power pertains to cancelling visas where visa holders do not pass the character test. Following representations made by the applicant, on 31 August 2020, the Department decided not to revoke the visa’s cancellation.
The applicant applied to have the decision not to revoke the mandatory cancellation reviewed by [a senior member] of the AAT’s General Division. The General Division has jurisdiction over cancelled and refused visas based on character grounds and section 501 of the Act. On 24 November 2020, the Senior Member affirmed the decision not to revoke the mandatory cancellation.
A copy of the decision record from the General Division was provided to the applicant prior to the hearing and adverse information arising from it was put to the applicant during the second scheduled hearing. As part of the adverse information provided to the applicant, the Tribunal noted the applicant’s extensive criminal offending in Australia was outlined in the General Division’s decision record.
The decision record states that the applicant appeared before [a] Court in the State of Victoria in August 2012. He was convicted of the following offences: Use unregistered motor vehicle on a highway; Fail to answer bail; Drive whilst authorisation suspended; Careless driving of a motor vehicle; Theft of a motor vehicle; Drive in a manner dangerous; Possess dangerous article in a public place; and Possess any thing without authorisation in police gaol. For this group of offences, he was placed on a Community Correction Order for 12 months and required to perform 75 hours of community work. In January 2013, the applicant appeared again before the same Court. On this occasion, the applicant was convicted of the offence of dishonestly undertake in retention of stolen goods, and was fined $2,000.
On 9 February 2018, the applicant appeared before the [Court]. He was convicted of the following offences: Possess suspected stolen goods; Posses methylamphetamine (two charges); Unlicensed driving; Use unregistered motor vehicle on a highway; Use vehicle over 14.5 GVM tonnes not compliant with regulations; Possess cannabis; Dishonestly undertake in retention of stolen goods (two charges); Negligently deal with proceeds of crime (two charges); Commit indictable offence whilst on bail (two charges); and Handle/receive/retention of stolen goods (three charges). He was placed on a further Community Corrections Order for 12 months and required to perform 125 hours of community service.
On 8 May 2018, the applicant appeared before the [Court] and was convicted of the following offences: Burglary; Theft of a motor vehicle; Theft of a bicycle; Theft (two charges), Careless driving of a motor vehicle; Dishonestly undertake in the retention of stolen goods; Commit indictable offence whilst on bail; Theft from a motor vehicle; and Negligently deal with proceeds of crime (two charges). He was further convicted of the offences of Possess methylamphetamine; Go equipped to steal/cheat (two charges); Possess controlled weapon without excuse; Dishonestly undertake in the realisation of stolen goods; and Handle/receive/retention of stolen goods. For this group of offences [the applicant] was sentenced to an aggregate of 51 days' imprisonment and a Community Service Order of 12 months was imposed.
On 15 February 2019, before the [Court], the charge of Contravene Community Correction Order was found proven, as was a breach of a Community Correction Order (which was earlier imposed), and the applicant was sentenced to seven days' imprisonment. He was further convicted on that date of the following offences: Possess suspected stolen goods; Posses methylamphetamine (two charges); Unlicensed driving; Possess cannabis; Dishonestly undertake in the retention of stolen goods (two charges); Negligently deal with the proceeds of crime (two charges); Commit indictable offence whilst on bail (two charges); Handle/receive/retention of stolen goods (three charges); Use unregistered motor vehicle on a highway; Use vehicle over 14.5 tonnes not compliant with regulations; Possess methylamphetamine; Possess ecstasy (MDMA/MDA/MDEA/MDA); Possess drug of dependence (not named); Traffic methylamphetamine; Have article of disguise with unlawful intent; Go equipped to steal/cheat; Deal in property suspected proceeds of crime (four charges); Possess prohibited weapon without exemption or approval; Handle/receive/retention stolen goods; Retention of stolen goods (three charges); Possess housebreaking implements (two charges); Contravene Family Violence Interim Intervention Order; Commit indictable offence whilst on bail; Theft from shop (Shopsteal); Dishonestly undertake in the retention of stolen goods; Enter a private place without authorisation or excuse; and Theft of a motor vehicle (two charges). For this group of offences [the applicant] was sentenced to an aggregate of 175 days' imprisonment.
On the same date, the same Court convicted the applicant of the offences of: Contravene Community Correction Order, Burglary; Theft of a motor vehicle; Theft (2 charges); Possess methylamphetamine; Dishonestly undertake in the retention of stolen goods; Go equipped to steal/cheat (two charges); Commit indictable offence whilst on bail; Theft from motor vehicle; Dishonestly undertake in the realisation of stolen goods; Negligently deal in the proceeds of crime (two charges); Possess controlled weapon without excuse; and Handle/receive/retention of stolen goods. For this group of offences, he was sentenced to an aggregate of 51 days' imprisonment.
On 9 December 2019, the applicant appeared before [another] Court in Melbourne and was convicted of Intent to expose emergency worker to risk by driving, and a base prison sentence of 12 months was imposed. On the same day, the applicant was also convicted of the following offences: Theft of a motor vehicle (sentenced to 8 months' imprisonment, aggregate of 3 months, served concurrently); Drive whilst disqualified (6 months' imprisonment, aggregate of 2 months, served concurrently); Handling stolen goods (6 months' imprisonment, aggregate of 2 months, served concurrently); Negligently deal with the proceeds of crime (3 months' imprisonment, aggregate of 1 month, served concurrently); and Commit indictable offence while on bail (1 month imprisonment, served concurrently). The aggregate sentence imposed by the Court was 20 months' imprisonment with a non-parole period of 14 months.
On 16 January 2020, at [a] Court, he was convicted of the following further offences: Go equipped to steal/cheat; Possess methylamphetamine; Theft of a motor vehicle; Handle/receive/retention of stolen goods (four charges); Deal in property suspected the proceeds of crime (eight charges); and Handle/receive/dispose of stolen goods (three charges). He was sentenced to an aggregate of 3 months' imprisonment. On 8 May 2020, the applicant appeared at [a] Court and was convicted of the offence of Theft, and sentenced to 3 days' imprisonment. The applicant was also ordered to pay $100 compensation.
Written claims at the time of application in 2022
The applicant applied for a Class XA Subclass 866 protection visa on 11 January 2022. At the time of application, the applicant was in immigration detention on Christmas Island.
The applicant’s claims for protection to the Department, and the evidence they provided in support of their claims are contained in [file number deleted], and are summarised as follows:
· The applicant witnessed a murder committed by a group of dangerous people (‘the group of dangerous people’) approximately 15 to 20 years ago.
· When he was in [Immigration Detention 1] he told another individual of Sri Lankan background that when he returns to Sri Lanka, he intends to bring the responsible people involved in the above murder to justice for their actions by informing the authorities what he witnessed.
· The abovementioned individual from [Immigration Detention 1] was deported to Sri Lanka and jailed. The group of dangerous people have told him that the above-mentioned individual informed them of his intentions to inform the authorities about them.
· The applicant claimed to have received threatening messages on social media and a threatening telephone call from this dangerous group of people in Sri Lanka.
· The applicant has a subjective fear that if he returns to Sri Lanka the following will happen:
o The applicant will be killed by this dangerous group of people
o The applicant will not be able to relocate to avoid such harm because Sri Lanka is a small country, and such individuals could find him regardless of where he goes; and
o The applicant will not be able to seek assistance from the Sri Lankan authorities because they are corrupt and unable to protect him.
The following documents were submitted to the Department by the applicant to support his claims:
· Transcript of a [social media] conversation between the applicant and a person by the name of [Mr C]. Such conversations are dated: 19 November 2021 at 1:14am, 19 November 2021 at 2:35am, and 19 November 2021 at 7:21pm;
· Screenshots of a [social media] conversation between the applicant and a person by the name of [Mr C]. Such conversations are dated: 19 November 2021 at 20:14pm; 21:35pm and on 20 November 2021 at 14:12pm. The screenshots also show 3 missed audio calls made on 19 November 2021 at 20:54pm;
· Translations of the above-mentioned [social media] screenshots;
· Screenshot of the [social media] Activity Log between the applicant and [Mr C]. This screenshot shows them to have 36 mutual friends and that they have been friends since November 2021.
The following evidence was submitted by the applicant to support his claims of threats to his family in Sri Lanka:
· An uncertified and untranslated document which is titled “receipt of the police report”. This document is dated 10 December 2021;
· An uncertified and signed copy of a letter on the letterhead of [a firm], Attorney at Law & Notaries Public, dated [January] 2022. This letter states that the applicant’s father is their client and provides some information about instructions they received from their client about him receiving a death threat. They confirm their client applied for a copy of their police report but that said police report could not be provided as the investigation was ongoing. An untranslated copy of this letter has also been provided along with its translation.
· The following 3 audio files:
o 2 minutes and 44 seconds audio file: The beginning of the audio is a dial tone (someone calling someone else); two men can then be heard speaking to each other in a foreign language. An English transcript has been provided of the above audio call. In the transcript the person with whom the applicant is speaking states that he has committed a murder and that he is on bail. He tells him not to do anything or say anything if he comes to Sri Lanka and alludes to his mum, dad and sister being harmed if he does not comply. This file is dated 20 November 2021;
o 1 minute and 54 seconds audio file: The beginning of the audio is a dial tone (someone calling someone else); two men can then be heard speaking to each other in a foreign language. An English transcript of the above audio call was provided. In this transcript, the person with whom the applicant is speaking states that if he comes to Sri Lanka then he will kill him and his family. This file is dated 22 November 2021;
o 4 minute and 57 seconds audio file: The beginning of the audio goes straight into a conversation where two men can be heard speaking to each other in a foreign language. An English transcript of the above audio call has been provided;
· A series of links to video files through a Google Drive link. These files were inaccessible. The applicant was informed that this was the case in a section 56 letter dated 3 February 2022, however, he did not later provide the files in a format to allow the files to be accessed;
· Translation of audio from CCTV Footage, which the applicant claims shows videographic evidence of the applicant’s father being threatened.
Request for information under section 56 and 57 of the Act
The applicant was provided the opportunity to provide all of the details of their protection claims. The application form that they completed informed them that they should provide all of their claims for protection and provide all documentation or other evidence to support their claims. It also informed the applicant that a decision could be made based on the information provided in their application.
On 13 January 2022 the applicant was sent an acknowledgement of valid application letter which advised him that the applicant could provide additional information relating to his claims and how he could provide this. The letter also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information. The Department has made the following requests for further information, and comment in relation to ‘adverse information’, from the applicant:
· On 28 January 2022 the applicant was requested to provide “copies of the text messages and social media messages your family received; the conversations, phone calls and video footage you claim exists, copies of police reports;” and
· To comment in relation to the delay in making his application for a protection visa (noting he has been in custody since November 2020 and applied for a protection visa on 11 January 2022).
On 3 February 2022 the applicant was informed that he had not provided any further information and detail in relation to his claims in response to the section 56 request made on 28 January 2022. He was invited to do so. The applicant was informed that the majority of documentary evidence he had provided could not be considered as it was not translated into English. The applicant was asked to translate his documents if he wished for them to be considered.
On 10 February 2022 and 21 February 2022, the Department made requests that the applicant provide comment in relation to ‘adverse information’ which could form the reason, or part of the reason, for refusing to grant the applicant a protection visa. The ‘adverse information’ was put to the applicant and his responses are detailed in the Findings of Fact section below.
I consider that the applicant has been given a reasonable opportunity to provide additional information and evidence to substantiate his claims. I am now proceeding with a decision based on the information before the Department.
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 1 March 2022.
Evidence during the application for review
On 2 March 2022, the applicant applied to have the delegate’s refusal decision reviewed by the Administrative Appeals Tribunal (following the July 2015 amalgamation of the RRT and MRT with the AAT, this matter was differently constituted to earlier appeals regarding refused partner and protection visas). Attached to the application for review was a copy of the delegate’s notification of the refusal decision, and the decision record.
A short video hearing was held on 4 May 2022. The applicant requested additional time to seek out representation before he provided more extensive evidence to the Tribunal. The Tribunal also explained that the video formats were not viewable, and it was suggested he resubmit in another format so the Tribunal could give careful consideration. An extension of time was granted.
The applicant has submitted the following evidence to the Tribunal:
On 3 June 2022, the applicant submitted a document titled ‘December 9 Insident Reporting’ which contained google drive links, YouTube Links and Twitter links to the following descriptors:
·‘Public properties attacked – images’;
·Attacked to a lady – Images;
·Attacked to TT – Video;
·Attack Opposition leader – video;
·Attacked GGG;
·Attack Lady video;
·Set fire homes;
·Attacked back to SLPP supporters;
·MP assassinated.
On 6 June 2022, the applicant submitted a document titled ‘9th of May 2022 Insidents Reporting’ which contained google drive links, YouTube Links and Twitter links to the following descriptors:
·Sri Lanka Prime Minister quits as death toll from political violence rises. – [Video] (Even catholic clergy has been attacked in this incident);
·Attack on a Lady. (a) Attacking a Lady at the beginning of the attack by the SLPP supporters (current ruling party who is in the power) – [Video] (b) Attacking the Lady – [Images];
·Attack on GotaGoGama – [Videos];
·Attack on the Opposition Leader in Sri Lanka and SLPP supports – [Videos];
·MP Assassination. (a) MP assassination – [Video in Sinhala] (b) MP Amarakeerthi Athukorala found dead amidst unrest in Nittambuwa – [Video in English];
·Attacked to Temple Trees (Current residence of the Prime Minister of Sri Lanka) – [Video];
·Angry Citizens set fire to houses of Parliamentarians – [Video];
·Public properties attacked – [Images];
·9th of May 2022 whole incident reporting in Brief – [Video] (The Attack on GotaGoGama and Everything That Followed).
On 22 June 2022, the applicant submitted a document containing links to various news articles as per the following:
· A one year and four-month-old baby raped, brutally sexually abused & beaten to death - [17/07/2020] of the 9-year-old Fatima Ayesha - [28/05/2022] 16 year old school girl’s body found inside a well child cruelty in Sri Lanka Lanka's annual inflation climbed to an all time high of 39.1 percent in May of 2022. It was the highest inflation rate recorded ever & the sixth consecutive double-digit growth in consumer prices continued to climb further for both food & non food products. Also Sri Lankan rupee depreciates against USD. As a result of inflation, depreciation of the Sri Lankan rupee (Sri Lankan Currency) & high cost of living had made Sri Lankan a place that cannot be lived;
· Power cuts in Sri Lanka have hit all walks of life. & death struggle asking gas & fuel. Lanka deploys troops as fuel shortage sparks protests. are dying in line for fuel. In cash- strapped Sri Lanka, two men die waiting in queue for fuel. Sri Lanka cancels schools’ exams over paper shortage.The disastrous decision to rush into organic farming. Economists say a government decision last year to ban chemical fertiliser and make Sri Lanka the first country to farm organic-only was disastrous. Authorities insisted there would be no impact by the sudden abandonment of traditional farming practices. But six months after going organic, the country that was once self-sufficient in rice production had to import more than $600 million of foreign rice. The ban on fertilisers saw crop yields plummet, triggering inflation and crushing Sri Lankan exports of tea and rubber.The impact on the tea industry alone — Sri Lanka's main export — amounted to an economic loss of $573 million;
· Therefore, Sri Lankan protesters demand president quit over economic crisis. protection for civilians in Sri Lanka. People have been killed brutally and found their bodies in several places;
· Proof 6 shootings within 7 days. murders reported since May 30th of murdered youth found in Moratuwa killed in shooting incident at Manning market killed in shooting incident in Panadura doctor stabbed by homeless man outside Battaramulla supermarket
· Two incidents of murders during home burglaries
· A woman’s body was found in Kiribathgoda was found in Kiribathgoda type="1">
On 7 July 2022, the applicant appeared before the Tribunal in a resumed hearing. During this hearing, pieces of information related to the four separate decision records pertaining to the applicant that the Tribunal sent to the applicant on 17 May 2022. The Tribunal undertook this under the adverse information provisions under s 424AA.
The Tribunal raised with the applicant a decision record dated 5 September 2012 which reviewed a refused bridging visa E. This Migration Review Tribunal (MRT) decision outlines the applicant’s early visa history; that he came to Australia to study on a student visa in June 2008; that the applicant did not complete any course work; that his spouse in Sri Lanka divorced the applicant in 2010 that his study visa expired on 15 March 2012 and then became unlawful; that he was charged with a number of offences by the Victoria Police in May 2012, which led to the applicant being detained in Immigration detention under s.189 of the Act; that he applied for a partner visa on 20 August 2012. The partner visa application had not yet been decided at the time of this decision. The applicant was refused a bridging visa because the applicant had not complied with conditions on his earlier visa, and he remained in Australia unlawfully after his student visa expired.
The second decision record related to a 7 March 2013 MRT decision, affirming the delegate’s decision not to grant the applicant a protection visa. This MRT decision outlined an elaborate set of protection claims that the applicant was a person of interest to members of a rival political party as he belonged to the United National Party; that had been employed by a former [minister]; that he had been abducted by [an individual] and had endured torture and physical ill-treatment; that he took refuge in a psychiatric institution that the applicant feared death and severe hardship due to political persecution. The decision record further mentioned that the applicant returned to Sri Lanka in 2008 due to the birth of his by his wife but was not hurt; and that that his parents owed a [factory] and employed [number] people. Accompanying these claims were a number of documents to corroborate these claims. Of particular interest to the Tribunal was the decision maker’s finding that the applicant’s claims lacked overall credibility.
The Tribunal raised with the applicant that the 20 March 2013 MRT decision to affirm the delegate’s decision does not grant the applicant a Bridging visa (in relation to a Ministerial Intervention request and a prospective judicial appeal for a protection visa). Of particular interest to the Tribunal is that the applicant had been charged in July 2012 with reckless conduct endangering life, driving in a manner that was dangerous, possession of a dangerous article and assault with a weapon; that his parent visa was refused on 26 September 2012, but the refusal decision was not appealed. The decision record mentioned that the applicant had admitted in an earlier interview with his case officer on 22 October 2012 in relation to his protection visa application, "I'll be totally honest with you, I'm applying for the visa because I'm waiting for my girlfriend to be [age]". It was later confirmed that the applicant's girlfriend was involved with his wife's younger sister,(who would later become the applicant’s third spouse born in [year]). She was not yet [age] years of age at the time. On 29 October 2012, the applicant advised Immigration authorities that the applicant’s third spouse gave birth to the applicant’s son on [date]. The decision record also mentions that on 22 August 2012, the former spouse of the applicant told the Department the marriage in association with the partner visa was a sham and that the applicant was not the father of her child; and that he was in a de facto relationship with an Australian woman with whom he had a child in 2012. Adverse information had been put to the applicant that police operations investigated the applicant’s involvement in [an illegal activity] and that there had been a complaint about sexual interference with a minor. The applicant admitted having established up a [business] and that he had been improperly employed while it was not lawful for him to work but denied being involved in [specified activity].
Lastly, there is a decision by [a senior member] at the General Division of the AAT on 23 November 2020 which affirmed the decision to cancel the applicant’s granted partner visa Class BC Subclass 100 on character grounds. The decision record mentioned that the applicant told the Tribunal that he had sexual liaisons with his third spouse because he believed she was aged [age] and claimed her parents told him she was [much older]; but agreed to her giving birth to a child when she was [age]. It mentioned that the applicant voluntarily returned to Sri Lanka and that the applicant’s third spouse followed him to Sri Lanka and then they married at the beginning of 2015, when his spouse turned [age]. The applicant lived in Sri Lanka with his third spouse and child – both of whom were Australian citizens, for two years. The applicant then returned to Australia in August 2017 on a partner visa. However, the marriage broke down. The applicant did not tell the Department about the relationship breakdown. The applicant stated his main motivation for not informing the Department about the marriage breakdown had been his son, whom he financially supported. He further mentioned that the applicant had two children from his first marriage but no contact with him since 2010. It went on to mention that the applicant contravened an interim family violence orders to stop or limit the applicant’s access to his son and his son’s mother; that the applicant admitted to first using methamphetamine in 2012 and that he stole motor vehicles to fund his habit and that his habit was related to him being subject to community correction orders and to him being charged for trafficking the illicit drug. With regards to his offending, the decision record mentioned that the applicant stole a vehicle and used the same stolen vehicle in an attempt to injury a uniformed police constable after he was directed to stop the vehicle, and had otherwise accumulated some 90 offences over two relatively short periods of time living in Australia. The decision record also mentioned that the applicant had disclosed to an Australian court that he had claimed to have been a spy for the Sri Lankan authorities, and that he had been abducted by members of the Tamil separatist organisation known as the Tamil Tigers, who had interrogated and exposed him to extreme violence for several days; and that this contributed to him suffering post-traumatic stress disorder (PTSD). However, the senior member noted that the applicant did not advance these claims as reasons why the applicant’s circumstances agitated Australia’s protection obligations at the relevant hearing.
The Tribunal explained, that subject to any comment or response the applicant makes, the information would be the reason, or part off the reason, for affirming the decision under review. Due to the extensive details about the adverse information, the Tribunal recommended that it may be preferable for the applicant to respond to the information at a resumed hearing.
The applicant said that he wanted to immediately address the past harm he experienced by the Tamil Tigers (or LTTE). The applicant elaborated that he had not been represented during the merits review of his cancelled partner visa. He also conceded that his claims for protection when he first applied for a protection visa claims were not genuine. However, the LTTE incident had been raised as part of his psychological evaluation and that he did encounter harm by the LTTE. The applicant went onto say that the claim was not relevant because the civil war had ended, and he no longer held fears about the LTTE. He said the applicant had visited a Catholic Church associated with miraculous events in a Tamil [town]. During the visit, he was abducted on the basis he was Sinhalese and suspected of spying or working for the authorities. The applicant claimed to have been questioned about being an informant for the authorities, but not believed. While he had been harmed during interrogations which including being hung upside down, he was eventually released when one of the LTTE members realised he attended the same [school] in [as] himself.
A further resumed hearing was held on 18 July 2022. At the end of the hearing, he was provided with an opportunity to provide a post hearing submission, and to do so by 22 July 2022.
On 21 July 2022, the Tribunal received an emailed statement in English addressing the reasonings of the delegate’s decision not to grant this visa. It also mentioned the applicant has a medical history not raised previously with the Tribunal, namely the applicant suffers from haemorrhoids (swollen veins in the lower rectum) and back pain, which has led the applicant to have a habit using pain killers. The applicant claimed he was undertaking physiotherapy and that the required painkillers, suboxone or buprenorphine, are not available in Sri Lanka.
The applicant provided access to further videographic evidence: CCTV footage dated 12 and 15 December 2022 indicating the applicant’s father and members of the Sri Lanka community met to discuss the threatening incident, which allegedly occurred on 9 December 2021. The applicant also provided screenshots as evidence of date and time stamps of the threatening incident with the applicant’s father from 9 December 2021.
On 22 July 2022, the Tribunal received a statement titled: ‘answers on behalf of my brother’. It appears to be written by the applicant’s sister. It specifically states that since submitting the police complaint receipt, and the letter from the law firm, they did not think it was necessary to produce the police video.
On 25 July 2022, the applicant provided articles about the political and economic crisis in Sri Lanka from the BBC and the ABC.
No further documents were received for the Tribunal’s consideration.
There are no non-disclosure documents attached to either the Departmental or Tribunal’s files.
ASSESSMENT OF CLAIMS AND FINDINGS
Applicant’s identity and country of reference
The Tribunal notes that Departmental systems indicate that the applicant is also known by the names [names]. However, the Tribunal accepts the applicant’s aliases are simply rearrangements of his name.
The applicant has claimed to be a citizen of Sri Lanka. He provided a copy of his passport issued by the Sri Lankan authorities and a number of other documents with variations of his identity to the Department, which is on the departmental file. On the basis of this evidence, the Tribunal finds the applicant is a national of Sri Lanka for the purposes of the Convention and that his country is the receiving country under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
Assessment of Claims
The applicant has claimed that he cannot return to Sri Lanka because he witnessed the serious elements of a crime, namely the stabbing murder of local [Occupation 1], that took place in Colombo approximately 15 to 20 years ago, and those responsible for the crime have threatened the applicant with significant physical ill-treatment and killing. Threats were conveyed to the applicant directly by text message, and indirectly by criminals conveying threats to the applicant through his family members in Sri Lanka.
The applicant submitted an email dated 17 February 2022 to the Department outlining to that following the cancellation of his partner visa, and while the applicant was detained at [Immigration Detention 1], he disclosed to another Sri Lankan detainee that the applicant was going to inform the authorities in Sri Lanka about the murder he had witnessed. He wrote that he did not recall exactly when the crime occurred, but he believed it to have taken place over 17 year ago. The applicant then disclosed in the written statement that [Mr D] and [Mr E] had killed a person in order to steal the victim’s vehicle. It is then claimed that the applicant became aware of the crime when [Mr D] and [Mr E] approached the applicant with the stolen vehicle to seek his assistance in selling it. The killers informed the applicant about the murder. The applicant refused to assist the criminals once he was aware of the killing. The applicant described holding onto this knowledge of the killing ‘as a burden on this chest for a long time’. The applicant further wrote that when he returns to Sri Lanka he would like to bring justice to the perpetrators.
The applicant further explained that he had spoken about this incident and his desire for justice to ‘[Mr F]’, a Sri Lankan national who had been detained in [Immigration Detention 1], and subsequently removed 6 months before the applicant’s February 2022 email (outlining these claims). The email further elaborated that ‘[Mr F]’ was arrested on arrival by the Sri Lankan authorities and remanded in custody at [a] prison, where ‘[Mr F]’ mentioned the applicant’s disclosed intentions to [Mr D]’s imprisoned associates. The associate, in turn, informed [Mr D] about the applicant’s intention to approach the authorities as a witness, which led to the applicant receiving threats against his life, both directly and indirectly, so as to warn him from returning to Sri Lanka.
100. In this matter the Tribunal has made cumulative adverse credibility findings against the applicant’s dispositive claims for protection, specifically that he is a witness to a historic serious crime, and that he had been directly or indirectly threatened not to return to Sri Lanka by the alleged killers.
Accepted personal circumstances
101. Leaving aside the adverse credibility concerns and findings as outlined below, the Tribunal nonetheless accepts the following personal particulars about the applicant to credible and salient:
· The applicant was born in [date] in Sri Lanka, as claimed;
· The applicant belonged to a Sinhalese Sri Lankan family; that the family belongs to the Roman Catholic faith tradition; and that his ethnicity is Sinhala;
· The applicant’s mother and father and his only sibling, a sister, reside in metropolitan Colombo;
· The applicant was educated and raised in Colombo and that he speaks, reads and writes in the Sinhala and English languages;
· The applicant’s educational attainments include completing secondary school at a [college][5], a [qualification], and [another qualification];
[5] [Name] College, Colombo - Wikipedia
· The applicant was first married in Sri Lanka to a Sri Lankan national with whom he had two daughters - [and] no sons;
· There was an ex parte divorce in which the applicant’s first wife ended the marriage while the applicant was in Australia;
· The applicant was in a spousal relationship with an Australian citizen for migration purposes between 2012 and 2013. After this relationship broke down, the applicant began a relationship with the sister of the applicant’s second spouse which led to the birth of the applicant’s Australian citizen son in 2012;
· When the applicant departed Australia for Sri Lanka in July 2013, the applicant married the mother of the applicant’s son and returned to Australia in 2017, whilst sponsored by the applicant’s third spouse;
· The applicant’s third spousal relationship broke down after arriving in Australia in or around 2019; and
· Around 90 convictions for criminal offending in Australia are recorded against the applicant’s name.
Credibility concerns
102. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for that the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
103. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.) The Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Earlier protection visa application and other aspects of the applicant’s visa history
104. As outlined above, the Department and the Tribunal put to the applicant adverse information about his visa history and a number of comments the applicant made in relation to it. The Department raised the adverse information in a section 57 letter dated 10 February; while the Tribunal had earlier sent four separate Tribunal decision records to the applicant on 17 May 2022 and then put the particulars arising from those decisions to the applicant on 7 July 2022. The Tribunal asked the applicant whether he understood the information, to which he responded that he did. The Tribunal then went on to provide reasons the information was relevant, and that, subject to any comments or responses, the information would be the reason, or part of the reason, for affirming the decision that is under review.
105. In his initial set of protection claims from October 2012, the applicant advanced he has a well-founded fear of persecution on the basis of his involvement in supporting a major political party in Sri Lanka, the United National Party (UNP) and that he was abducted and tortured by members of the rival People’s Alliance (PA) party. A substantial number of accompanying letters of support, party memberships. photographs, medical reports and police reports as corroborating evidence to these very detailed claims for protection.
106. The Tribunal also notes there were fanciful and far-fetched claims as outlined by the MRT decision from Mary 2013, including the applicant being a former employee of [a Minister], that [an individual] abducted the applicant, and that the applicant’s took refuge in a psychiatric institute. The MRT pointed out the credibility of the applicant’s claims were undermined by the applicant returning to Sri Lanka in 2008 and the delay in his application.
107. During the resumed hearing in which adverse information had been put to the applicant (but prior to the adverse information having been put), the Tribunal asked whether the applicant could recall the claims he advanced for a protection visa application lodged in late 2012. The applicant responded he did not.
108. The adverse information that it was recorded in relation to bridging visa application associated with his protection visa applicant that the applicant had stated: ‘I'll be totally honest with you, I'm applying for this visa because I'm waiting for my girlfriend to be [age].’
109. Relatedly, the Tribunal also has concerns arising from the applicant’s explanation on this matter given during the review of the cancellation of his partner visa on character grounds. According to the 2020 decision record, the applicant told the Tribunal his marriage broke down before being placed in custody, but the applicant did not tell the Department about the breakdown. The applicant stated his main motivation for not informing the Department about the marriage breakdown had been wanting to continue to see his son, whom he financially supported.
110. The applicant repeated these concerns about being separated from his son during the hearing after putting key aspects of this visa history (as outlined in past decision records) to him under s 424AA. Furthermore, based on the applicant’s statement in a post hearing submission reiterated similar comments which have invited the Tribunal to consider that he has applied for this protection visa application based on motivations other than holding a well-founded fear of persecution or that he will suffer a real risk of significant harm in returning to his country of nationality. Below are extracts from that statement expressing that his motivation, at partially, had been driven by his bond with his son:
I even told my parents last September or October after losing in full federal court to get my original visa reinstated, (I remember telling my mom that I have only one option left and that is to go to High Court and also that it’s going to take a quite some time and that I'm tired with fighting this system to be there for my son.
[…][…]
I'm not going to deny the fact that I tried my level best to stay in the country. This system cannot blame me for that because obviously this country clearly has a better future for me and my son than Sri Lanka. I do not deny that fact. But after losing my two girls with my ex-wife, I had only one ambition and that was to be there for my son as a father and give him the best future that I possibly can give him. Obviously I failed on that. I'm only human, aren't we all. We all do make mistakes in our life’s and the most important thing is you will learn from your mistakes and make sure that not to do the same mistakes again and to learn a lesson from it. No matter the outcome is I think I ve learned the most important lesson of my life and I ve lost everything what I love for their for I think being locked for such a long time has opened my eyes not to repeat them mistakes ever again.
I don't blame anyone but myself for what I'm facing right now. I wasted my whole life at least the most of it for drugs. But once I had my son with me from 2013-2017, I did not touch any drugs at all, because I wanted to be a role model for my son. But when I returned back to Australia and found out that my partner has been cheating on me for the last two years since she returned back to Australia from 2015, I did not take that well. Obviously I took the worst decision ever by turning myself to drugs, I cannot take back what happened, if I was to be given a wish all I would ask for is to go back in time and not to touch drugs
111. Another significant credibility concern for this matter arises from the applicant’s initial protection visa application. The applicant applied when it appeared that his migration options were considerably limited following the withdrawal of the sponsorship of his partner visa. The Tribunal notes these other aspects about the applicant’s Australian visa history prior to the application for a protection visa in October 2012, specifically that; the applicant had been unlawful between 15 March 2012, detained in immigration detention, and refused a bridging visa in association with a partner visa application he had lodged in August 2012. Notably the applicant claimed he had applied for a protection visa to marry his prospective spouse when she reached [age] years of age – a reason unrelated to his written claims for protection. The context in which the applicant applied for a protection visa in 2021 occurred after the applicant and he has stated in this matter that he does not want to be separated from his Australian citizen son.
112. The applicant has nevertheless put to the Tribunal that when he applied for the protection visa under review in this matter, the applicant had agreed to voluntarily depart Australia after his sentence for criminal offending has been completed. He insisted this indicated that he had otherwise been reconciled to returning to his country of nationality. This was until he and/or his family members began receiving threats.
113. Providing a set of claims for a protection visa application reasonably invites suspicions that a later set of claims lack credibility. In this matter, the applicant admits this and admits the earlier set of claims were accompanied with the supply of substantial fake or fraudulent material, has strongly and reasonably invited further suspicious the applicant has provided elaborate and fraudulent material in this application for a protection visa, albeit based on different claims for protection. In the context of the applicant’s admission to providing false statements and fraudulent documents in the past, this credibility concern is deepened by the applicant’s expressed motivation to remain in Australia for familial reasons, which has invited the Tribunal to consider whether the applicant has proceeded in this application for protection in a similarly deceitful manner for the same reasons.
Witness to a serious crime: discrepancies between the applicant’s written and oral claims and reports of the claimed killing
114. During the second hearing, the applicant had an opportunity to elaborate on his limited written claims about witnessing a killing by two men known to the applicant, [Mr D] and [Mr E]. The applicant provided the context that that at the time of the killing, the applicant had been working for [a] company, and was selling [products] for extra cash. He claimed that [Mr D] and [Mr E] were known to him from social circles and parties they attended. He said that in the years before coming to Australia, [Mr D] called the applicant to ask for assistance in disposing a stolen car. He informed [Mr D] that the applicant was not into [the activity]. However, the applicant told [Mr D] that he had friends who had sold stolen vehicles in Tamil or LTTE controlled areas in the Northern Province, and those cars were never seen again. At this point, the applicant was not informed about any killing. The applicant then said that [Mr D] and/or [Mr E] came to his garage [in] the evening to ask the applicant to buy a [car] for a certain amount. The applicant said the asking amount was too much for the car. The men then disclosed to the applicant that they had killed someone to steal the vehicle and provided additional details including that they went to the house of one of [Mr E]’s neighbours in [a] suburb of Colombo in Western Province, and that the victim was a well-known [Occupation 1]. Panic ensued when they tried to overcome and subdue the victim, and in this melee, the assailants stabbed the victim twenty times. They then wrapped the victim’s body in a rug or carpet and placed the body in the boot of the stolen car. They said to the applicant they were afraid, and the police even stopped them (albeit this was before the stolen vehicle had been reported). The applicant said he wanted nothing to do with crime and that he was not threatened by the criminals.
115. The Tribunal enquired whether he had saw the body of the victim in the stolen car, to which the applicant responded he did not. He could not recall the name of the victim. The applicant said he was never interviewed by the authorities about the crime. The applicant undertook to provide more information such as media reports, as the Tribunal said the murder was likely to have been reported. The applicant added that [Mr D] is a burglar and drug dealer who had been arrested and had been in and out of gaol for numerous crimes; while [Mr E] was actually from a good family, and could not explain why [Mr E] associated with a common criminal. The applicant claimed that he was not sure if the body was ever found.
116. The Tribunal notes that in the applicant’s email dated 17 February 2022, the applicant’s account of these events was similar but less detailed to his oral account.
During the third hearing, the Tribunal read out the applicant’s specific written claim when answering question 81 in the submitted 866C form at the time of application:
They have killed people in the past,(i witnessed it in my own eyes)and killing another person or whole family to cover it up is not a big deal for them.
117. The Tribunal asked whether a fair reading of this statement would indicate that the applicant had personally witnessed a killing; however, he provided oral evidence that he had not seen the murder or the body in the vehicle. The applicant said that he meant the murderers had confided in him, not that he was an eyewitness, and explained his English is not good or strong.
118. In considering this written and oral testimony, the Tribunal is not satisfied that the discrepancy between the applicant’s written claims about being an eyewitness to murder, and later written and oral evidence about being informed by the killers of a murder, can be adequately explained by a linguistic misunderstanding or poor English language capacity. While the applicant was not assisted in lodging his written claims, the Tribunal notes the applicant’s English language skills were generally strong at the hearing. He was also educated in English and has spent considerable time in Australia (an English language speaking country where he commenced studies in English) before these claims were lodged. The applicant did not rely on the available interpreter during the hearing. In his post hearing submission, the applicant provided a statement over three pages in length - which demonstrated his proficiency in English to be more than adequate. In the context of the Tribunal’s credibility concerns that the applicant has provided fabricated claims in the past, the Tribunal is strongly invited to consider that the applicant’s limited claims for protection at the time of application have crystallised into a more detailed story but is still nonetheless a contrivance for migration purposes.
119. The Tribunal also holds the credibility concern that the applicant’s oral description in which he was a witness of a murder in the second hearing does not reflect the details in the submitted reportage of a killing. On 15 July 2022, the applicant forwarded two screenshots from Sri Lanka’s [media] dated 31 October 2004. The news report is titled ‘[title]’. The report mentions that the [Police] were investigating a gruesome killing of a popular [Occupation 1], and whether it was linked to a carjacking or a personal grudge. The victim is described as [an age] [Occupation 1], [Mr G]. It outlined that the victim was stabbed [whilst] the victim was asleep at his [resident]. The report quoted the investigating official, who stated that the killers covered the body with a bed sheet before stealing the victims [car], bearing the number plates [deleted]. The victim lived alone since his divorce and his body was discovered by a friend with whom he was going away with on holiday.
120. The Tribunal accepts this reportage, provided the applicant, reflected a genuine incident of a brutal and fatal stabbing of [Mr G], a [Occupation 1], at his [home], and that there was a stolen [car] associated with this slaying.
121. During the third hearing, the Tribunal raised with the applicant that this reported account differed to his account in many significant ways. While the applicant correctly said the victim was stabbed in his home and that he was a [Occupation 1], and the victim’s car was a [brand], the applicant had been adamant that the killers had told him that the body was in the boot of the vehicle. The Tribunal asked the reason the report states the bloodied body has discovered in the victim’s house. The applicant said the killers had returned the body. As discussed in the hearing returning the body would have been a very risky and implausible course of action for the killers. In the context of the Tribunal’s other adverse credibility concerns, this significant aspect of the applicant’s account about how he became aware of [Mr D] and [Mr E] killing [Mr G], lacked persuasiveness.
Lack of complete police complaint
122. A further credibility concern for the Tribunal has been the claim that the applicant’s family members in Sri Lanka lodged a police report (often known as First Incident Report) with the authorities in Sri Lanka. The police report was lodged following face-to-face threats the applicant’s father received at his home on 9 December 2021. To provide corroborative evidence, the Department received an untranslated ‘receipt of the police report’ dated 10 December 2021, and an uncertified and signed copy of a letter on the letterhead of [a firm], dated [January] 2022. The [letter] states that the applicant’s father is their client and provides some information about instructions they received from their client about him receiving a death threat. The letter claims to have confirmed their client applied for a copy of their police report, but that the authorities said a police report could not be provided as the investigation was ongoing. An untranslated copy of this letter has also been provided along with its translation.
123. The Tribunal asked the applicant whether he could provide a copy of the statement provided to the police in the third hearing. The applicant insisted that the authorities do not provide such statements, but he had evidence of the police visiting his father after his family received threats as it was recorded on CCTV. After the hearing, the applicant provided this videographic evidence but did not provide a copy of the complaint. The Tribunal’s credibility concerns arising from this are discussed below.
124. The Tribunal raised with the applicant that there is country information from the Immigration and Refugee Board of Canada stating that the Sri Lankan authorities do provide copies of complaints made to complainants. The research dated 30 April 2021 states that according to the Sri Lankan Police website, individuals can file complaints with the police, which are taken and addressed as early as possible. The same source noted that the public has a right to request an acknowledgement of the complaint made, and that extracts of complaints are issued by the office in charge of a police station by way of application, and the payment of 25 Sri Lankan rupees (about the equivalent of 16 Canadian cents). Furthermore, the office in charge is required to issue such documents (in accordance with the Code of Criminal Procedure).[6]
[6] IRB – Immigration and Refugee Board of Canada: “Sri Lanka: Police reports, including records of arrest or detention, extracts of complaints, and police clearance certificates; procedures for an individual to obtain a copy of a police report; prevalence of fraudulent police reports (2019–April 2021) [LKA200594.E]”, Document #2052957 - ecoi.net
125. In the context of the applicant being unable to obtain a complete police complaint, the Tribunal also notes that the applicant had provided a police complaint dated [November] 2021 detailing the applicant to be a victim of assault and vandalism from 2006 as part of his initial set of protection claims which the applicant admitted to have been contrived and augment by fraudulent material.
126. The applicant’s insistence that he or his family members or the family’s legal representative in Sri Lanka, were unable to access a lodged police complaint from December 2021 is not supported by the available country information. In the context of other adverse credibility concerns, the lack of a police compliant has invited further credibility concerns that; the applicant’s specific claims that his family had genuinely lodged a complaint following threats made to the applicant’s family members to be a contrivance; that the applicant had submitted to the Tribunal a fraudulently obtained handwritten receipt purporting a police station; and that a letter from a legal practitioner in Sri Lanka has no corroborative weight in this regard.
127. In the letter appearing to be written by the applicant’s sister and received by the Tribunal on 22 July 2022, there was a request for the source of the country information relating to accessing submitted police complaints in Sri Lanka from the Immigration and Refugee Board of Canada. The applicant’s sister is not an appointed legal practitioner or registered migration agent in this matter. There is no obligation by the Tribunal to provide any information to her. The source and date of the information was raised with the applicant in the hearing. Furthermore, an audio file was available to the applicant on request. The Tribunal is confident it has carried out its duties to the applicant in this regard.
Submitted videographic evidence
128. In the context of the Tribunal’s credibility concerns as outlined above, the Tribunal has carefully considered the videographic evidence that the applicant provided to the Department and the Tribunal.
129. The delegate outlines that the videographic evidence in the decision record dated 22 November 2021, (submitted along with an English transcript of the audio) were a series of links to video files through a Google Drive link. As the delegate was unable to view the material, a section 56 letter was issued, requiring the videographic evidence to be submitted in an accessible format. However, the videographic in an accessible format was not forthcoming according to the decision record dated 1 March 2022.
130. The delegate also received a four-minute audio file of a conversation between the applicant and his father. A submitted translation indicates the applicant’s father was threatened by unknown people at his own house, and that he informed the police the day after this happened.
131. In the initial hearing, the Tribunal request the applicant to provide the videographic evidence in an accessible format, which he did. The videographic evidence included six videos – from three different angles, that were each digitally date and time stamped between 9 December 2021, between about 7.30 and 8.30 PM. Three of the videos (each from one of the three angles) had audio.
132. In summary, the videographic consists of CCTV footage capturing the applicant’s father greeting two men, one medically masked and the other helmeted, at his front gate. Having invited the men through the gate and having offered a glass of water to the men, a tense conversation between the men and the applicant’s father ensued on the porch. The applicant’s father is pushed against a wall, shuffled towards his front door, when one of the men clutches a bottle on a nearby table, breaks it and then pushes the applicant’s father into the house. Some seconds later the men run out of the house and flee the scene. During the hearing, the applicant explained the men were not [Mr E] or [Mr D] but men connected to and supportive of [Mr D].
133. Below is the audio transcription in English of the exchange, as provided by the applicant:
Unknown Person : Is this [applicant]'s house? l'm a friend of [applicant]’s
Dad: Yes yes.. Tell me what happened?
Unknown Person : Can I have a glass of water?
Dad: Aso... bring a glass of water (Glass of water was brought by the daughter)
Unknown Person : Are you [applicant]'s Father?
Dad: Yes... What's the problem? tell me
Unknown Person: Didn't your son mention that some friends will come by?
Dad: No, He didn't mention anything like that. What's the problem?
Unknown Person: Problem? Tell your son not to come to sri Lanka. okay?
Dad: What's the reason?
Unknown Person: lf he comes to Sri Lanka, we will get to know......... (Not clear)Tell him that we will kill him like a dog if he comes back.
Dad: Okay.. Okay.. Okay
Unknown Person: Same will happen to you. ln case he comes to Sri Lanka, you'll get killed like a dog. Keep that in mind.
Mother: Who came?
Dad: He told me that he's a friend of our son's. He threatened me and asked to tell our come back
Mother: Why's that?
Dad: Who knows?
Mother: What was he saying? He did ask for a glass of water, right?
Dad: He drank the glass of water, and then he came here and broke the bottle and tried Dad to stab me,
[55] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, p.39, 20211223094818
[56] ‘Code of Criminal Procedure. An Act to Regulate the Procedure of the Criminal Courts (Code of Criminal Procedure Act)’, Parliament of the Democratic Socialist Republic of Sri Lanka, 1979 (amended to Act No.7 of 2006), CISBE8E6BE698
[57] DFAT did not address the issue of double jeopardy in its December 2021 report.
[58] 'DFAT Country Information Report Sri Lanka', Department of Foreign Affairs and Trade, 04 November 2019, p.65, 20191104135244
[59] ‘Country Information Report No. 08/14. Sri Lanka Criminal returnees’, RRT Country Information Service (CIS) 4 March 2008 (includes Department of Foreign Affairs and Trade (DFAT) Responses 27 February 2008), CX194510
[60] ‘Country Information Report No. 08/14. Sri Lanka Criminal returnees’, RRT Country Information Service (CIS) 4 March 2008 (includes Department of Foreign Affairs and Trade (DFAT) Responses 27 February 2008), CX194510
[61] ‘Country Information Report No. 08/14. Sri Lanka Criminal returnees’, RRT Country Information Service (CIS) 4 March 2008 (includes Department of Foreign Affairs and Trade (DFAT) Responses 27 February 2008), CX194510
206. There is a real chance that the applicant’s criminal history in Australia would come to the attention of authorities in Sri Lanka given media reports in the past. However, no information could be located by the Tribunal leading to an assessment that his offending in Australia would amount to the applicant facing a real chance or a real risk of being detained or arrested on re-entering Sri Lanka. Reports of Sri Lankan nationals re-entering Sri Lanka and being detained relate to those who have committed offences against Sri Lankan law by leaving the country unlawfully, or who have outstanding criminal charges. The country information supports Sri Lanka as a jurisdiction that does not prosecute persons for offending in another jurisdiction. The applicant has departed and re-entered Sri Lanka on a valid national passport in the past after earlier offending. There is no suggestion Sri Lanka’s immigration and emigration laws will adversely apply to the applicant’s circumstances whereby he will be detained for any period of time on arrival based on his offending. Furthermore, the country information does not support that the applicant’s offending in Australia, and the publicity that followed it, amounts to the applicant holding a membership of a particular social group in Sri Lanka, or for any other reasons mentioned under paragraph 5J(1)(a), should he return to Sri Lanka in the reasonably foreseeable future. Any chance of serious harm to be faced by the applicant in this regard will amount to being a far-fetched or fanciful chance - and not a real chance, of serious harm.
207. Accordingly, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any of the reasons mentioned in paragraph 5J(1)(a) based on his considerable offending in Australia. The ‘real risk’ test under s 36(2)(aa) is the same as the ‘real chance’ standard under the refugee criteria. The Tribunal accordingly finds that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, has only a far-fetched and fanciful risk – and not a real or substantial risk, of suffering significant harm based on his past offending and the publicity attached to it.
208. In this regard, the applicant does not satisfy either s 36(2)(a) or section 36(2)(aa).
Separation from his child
209. There was a thread of evidence in the applicant’s written and oral evidence that he did not wish to depart Australia because he risked being from separated from his Australian citizen child who had travelled to Sri Lanka with his mother prior to his return in 2017. The applicant returned to Australia on a partner visa, at least partially, to maintain a relationship with the applicant’s son. The applicant outlined to the Tribunal that his spousal relationship with the mother of the applicant’s son broke down in 2019, and he lost contact with his ex-wife in 2020. He said access to his son has become challenging. There is information in the November 2020 decision regarding the cancellation of his partner visa that the applicant has contravened an interim family violence order which was designed to stop or limit his access to his son. The decision record also mentioned it had been the applicant’s motivation to not inform the Department of his relationship breakdown, due to wanting to remain in Australia because of his son.
210. The Tribunal accepts this background to be credibly advanced and it further accepts these aspects of his life have had a distressing impact on the applicant.
211. Being away from one’s biological children in Australia, where they will continue to reside for the foreseeable future, while the applicant returns to his country of reference, either voluntarily or forcibly, is an emotionally and psychologically affecting position. In this regard, the applicant has the Tribunal’s sympathy.
212. Under Australian law, refugee status under section 36(2)(a) is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by, or with, the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of a refugee, unless the State either encourages, or is, or appears to be, powerless to prevent that private persecution. The object of these laws is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.
213. The Tribunal is not satisfied that this set of circumstances amounts to any nexus reason mentioned under s 5J(1)(a), and it does not accept the applicant has any membership of a particular social group as a separated or estranged father or parent, even when considering these accepted circumstances in combination with nexus reasons, which the Tribunal has already addressed in this decision. There is no systematic and discriminatory conduct towards the applicant on behalf of the state or other actors in this regard. For this reason, the Tribunal finds that the applicant does not have a well-founded fear of persecution for one of the five nexus reasons mentioned under paragraph 5J(1)(a) on the basis of being a separated or estranged parent from his children if he returns to Sri Lanka.
214. In this regard, the applicant does not satisfy s 36(2)(a).
215. With regards to the Act’s complementary protection provisions, the Tribunal has considered SZRSN v MIAC [2013] FCA 751 in which, the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of 'significant harm' in s 36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s 36(2)(aa) to Australia's 'protection obligations' as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s 36(2B) expressly refer to harm 'in a country' which is necessarily the receiving country if the circumstances of ss 36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
216. Further, the Court noted the circularity in the operation of s 36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise 'as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country'. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
217. Lastly, the Court in SZRSN v MIBP had regard to the 'intention' requirements in the s 5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an 'intention', so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s 36(2A). As such, it appears that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
218. For the reasons given, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from his Australian citizen child as their biological parent, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, as required by s 36(2)(aa).
Threat involving self-inflicted harm
219. The Tribunal notes the applicant claimed he will kill himself should this visa not be granted. He did not towards the end of the third hearing. There is no medical evidence from a medical professional or psychologist on file indicating that the applicant currently suffers suicidal ideation. However, the reckless nature of some of the applicants offending does strike the Tribunal as the behavior of a person who is troubled, self-destructive, and potentially with underlying but undiagnosed mental health conditions. Nonetheless, the Tribunal explained to the applicant that there is a general approach in refugee matters whereby the applicant cannot be their own persecutor. The applicant appeared to understand this. After the applicant presented to be at risk of self-inflicted harm in the final hearing, the Tribunal contacted the CI-IDC to monitor the applicant’s mental health and well-being.
220. Whether the applicant was exaggerating his mental health conditions is not relevant to assessing this claim for the purposes of refugee status under s 36(2)(a). The Tribunal does not accept the applicant's chance of serious harm from suicidal ideation or self-inflicted harm arises for any of the nexus reasons mentioned in paragraph 5J(1)(a). Furthermore, there is no targeted capriciousness directed at him through self-inflicted harm by any state or non-state persecutor in his country of reference. Neither does a ‘nexus’ reasons for the fear of self-harm exist. The Tribunal therefore does not accept the applicant has a well-founded fear of persecution for any reason arising from a threat of self-inflected person in returning to Sri Lanka.
221. With regard to the applicant having his life arbitrarily deprived though suicide, the Tribunal also notes the recent Federal Court findings in CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089, which upheld the Tribunal's decision that self-inflicted harm does not fall within the concept of harm to which s 36(2A) is directed, principally because the language used in s 36(2A) of depriving or subjecting points to the involvement of other persons, usually the government or somebody with sufficient power or authority to perpetrate such acts. With this case law in mind, the Tribunal finds that there is no substantial reason to believe that the applicant, as a necessary and foreseeable consequence of their removal from Australia to Sri Lanka, will suffer a real risk of significant harm arising from any threats of self-inflicted harm.
222. In this regard, the applicant does not satisfy either sections 36(2)(a) or 36(2)(aa).
Procedural matters
223. As previously mentioned in this decision, the Tribunal had earlier sent four separate decision records to the applicant on 17 May 2022, and then put the particulars arising from those decisions to the applicant on 7 July 2022 as required by the Act’s adverse information provisions. The Tribunal asked the applicant whether he understood the information, to which he responded that he did. The Tribunal then went on to provide reasons why the information was relevant, and that, subject to any comments or responses, the information would be the reason, or part of the reason, for affirming the decision that is under review. It was explained that the applicant was not required to respond immediately, and a further hearing was scheduled. The Tribunal received responses both during the second hearing and in subsequent written submissions. The Tribunal is satisfied that it exercised its duties in relation to the adverse information put to the applicant, as required by s 424AA.
224. The Tribunal notes the applicant was unrepresented throughout this matter. The Tribunal explained in the hearing scheduled on 4 May 2022, that it would be short as to provide the applicant the time to provide videographic and any other evidence for its consideration. The applicant expressed his concerns that he did not wish to provide oral evidence without representation. The Tribunal explained that the hearing will be adjourned to provide him with that opportunity with the caveat that the Tribunal’s decision-making duties cannot be delayed indefinitely, especially in a matter whereby the applicant was in immigration detention. It also highlighted that the applicant had supportive family members in Sri Lanka, including his legally trained sister, who may be able to engage a legal practitioner or registered migration agent in Australia on his behalf. On the same day, the Tribunal provided a copy of the delegate’s notification and decision record and attached the names and contact details of various not-for-profit organisations.
225. On 12 May 2022, the applicant emailed the Tribunal to seek an extension of time of an additional month (for the next hearing) while he discussed his matter with WA Legal Aid.
226. A resumed hearing was conducted on 7 July 2022. The applicant explained he was unable to engage a representative following an eight-week adjournment from the initial hearing. The Tribunal explained that it had provided the applicant ample time and appropriate assistance to engage a legal practitioner, and it had decided to proceed with the hearing, and to consider the applicant as a self-represented litigant. The applicant acknowledged the Tribunal’s reasoning in this regard and did not further object to the Tribunal proceeding with the conduct of the hearing. The Tribunal is satisfied that it proceeded with this hearing and the subsequent hearing without exercising its authority in a manner that can be characterised as capricious, arbitrarily, plainly unjust, without common sense or without reasonableness.[62]
227. Taking into account the above findings and these important issues surrounding procedural fairness, the Tribunal is satisfied that it has carried out its function in this matter by providing a mechanism for review that has been accessible; and is fair, just, economical, informal and quick; and is proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision making of the Tribunal, pursuant to s 2A of the Administrative Appeals Tribunal Act. It is also satisfied that the Tribunal acted according to ‘substantial justice and the merits of the case’ as required by s 420 of the Migration Act.
Cumulative findings
228. The Tribunal has undertaken an exhaustive assessment of the applicant’s claims, and it is satisfied that there are no more residual claims to consider in this review application.
229. Having considered the applicant’s claims, both cumulatively as well as individually, the Tribunal finds that there is no real chance that should he return to Sri Lanka, the applicant will encounter serious harm capable of amounting to persecution, for any reason mentioned under s 5J(1)(a), or any other reasons, based on any of his dispositive or residual claims for protection, now or into the reasonably foreseeable future.
230. The Tribunal does not accept on the evidence before it and based on its findings above, that the applicant has a well-founded fear of being persecuted for one of the five reasons under s 5J(1)(a), if he returns to his home country of Sri Lanka, as required by s 36(2)(a) and s 5H(1).
231. Having considered the applicant’s claims cumulatively as well as individually, the Tribunal is 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 of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s 36(2)(aa) of the Act.
[62] In this regard, the Tribunal has been mindful of what the Federal Court adopted in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 per Wigney J at [41] and [42] on the question of adjournments. The Tribunal has also been mindful of what the High Court of Australia has adopted in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, per Kiefel CJ at [10] and [11].
Conclusion
232. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
235. The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
MemberAttachment – 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.
…
Policy), 08 August 2022, 20220809111502; 'The Attack on GotaGoGama: The Aftermath', Watchdog, 13 May 2022, 20220526135419; 'Why Mobs Are Torching Sri Lanka Politicians’ Homes', Wall Street Journal, 12 May 2022, 20220513151623
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Appeal
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