2205215 (Refugee)

2205215 (Refugee) [2024] AATA 4394 (9 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mohammad Ajmal Malik
CASE NUMBER: 2205215

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Michael Simmons
DATE:9 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2024 at 4:45pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – failed asylum seeker – political opinion – campaigner for opposition politician – physical assault – death threats – delay in applying for protection – passport renewal – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 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 Sri Lanka, applied for the visa on 7 October 2018.
The applicant appeared before the Tribunal on 16 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.The applicant was represented in relation to the review.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity, background, receiving country
The applicant states he is ethnically Sinhalese, Catholic by faith and that he is a Sri Lankan national who originates from [Town 1]. During our discussion he provided reasonably detailed responses during to questions about his family, work and study history, and his place of origin. He has provided a copy of his Sri Lankan passport which reflects his claimed identity, nationality and place of origin.
I am satisfied that the applicant is who he claims to be. I accept that he is Sinhalese, a Catholic and a Sri Lankan citizen who originates from [Town 1 in] the Western Province. Sri Lanka is the receiving country for the purpose of this assessment.
Protection claims
A sworn statement from the applicant outlining his protection claims dated 4 October 2018 was provided with the application. This same statement was submitted again to the Department of Home Affairs on 2 March 2022 without any amendment or updates. The protection claims raised in the visa application can be summarised as follows.
·The applicant, who is Sinhalese and Catholic, originates from [Town 1] in Sri Lanka’s Western province.
·In 2017 he and his brother began volunteering for the [Agency 1], a disability support charity in [Town 1]. This association was founded by [Official A]. He subsequently lost power and was replaced by his political opponent - [Official B].
·[Official B] took over the [Agency 1] and decided he wanted to replace the old volunteers with his own new volunteers. The applicant and his brother refused to leave their volunteering roles and were harassed and received death threats from the bodyguards of [Official B]’. They complained to the Sri Lankan police but they did nothing to help them.
·In approximately May 2017 the applicant and his brother were assaulted by [Official B's] bodyguards when they were buying food for disabled people.
·In approximately June 2017 the applicant and his brother were again assaulted by the bodyguards. They stabbed the applicant’s [brother] before they managed to escape. The applicant’s brother required hospital treatment as a result of his injuries. The applicant lodged a police report regarding the incident but the Sri Lankan police took no further action even though the applicant identified the four perpetrators who assaulted them.
·Following the second assault, the applicant and his brother stopped volunteering and moved their family to [Town 2] which is approximately 200 kilometres from [Town 1]; however, they still did not feel safe.
·The applicant applied for jobs overseas to escape from [Official B's] bodyguards. He was granted a temporary visa to work [for a business 1] in Australia in July 2017 and he subsequently arrived in Australia in December 2017.
·Since his arrival in Australia the applicant’s brother has received numerous threatening telephone calls from [Official B's] bodyguards.
During the interview with the delegate, as reflected in the decision record, the applicant indicated that he and his brother were close friends with [Official A] and that they supported and participated in his election campaigns
The delegate considered a claim not raised by the applicant, namely that he would be a ‘Sinhalese failed asylum seeker returning from Australia’. He did not accept that the applicant has a real chance of serious harm or a real risk of significant harm on this basis. The applicant has not made any comment or submissions in respect of this claim subsequently.
During the hearing the applicant and I discussed his reasons for departing Sri Lanka and his fears of returning there. He provided the following further details.
·He was supporting opposition politician [Official A] since around 2011, he pasted posters and did campaign work whenever there was an election.
·He started volunteering for [Agency 1] in “2017 May/June”. The applicant’s duties at the association were mainly cooking for people
·The applicant never moved to or lived in [Town 2].
·He delayed applying for a protection visa for around 10 months after arriving in Australia because initially he was working [for business 1s], then after this he did not have a job or money and needed to find a lawyer.
·The recent economic and political changes in Sri Lanka have caused more danger to him and a lot of people, there is a lot of violence happening.
·His family are still getting threats by telephone to the present day.
A submission was provided to the Tribunal on 13 July 2024. This document is signed by both the applicant and Mr Malik. The first section of that document, “Background and claim”, restates paragraphs 1-17 of the 4 October 2018 statement. Unlike the first two versions of this statement which were a first person account from the applicant’s perspective, this version is in the third person. Noting the initial statement has now been submitted on three occasions since 2018 with no material changes I asked whether there had been any relevant developments in the past six years. The applicant replied that he was not allowed to make any changes or add anything to his application. I noted that my assessment was forward looking, and invited him to explain whether there was anything that needed to be changed or updated. He replied that the economic and political changes in Sri Lanka has caused more danger to him and a lot of people, there is a lot of violence happening.
The other section of the 13 July 2024 submission is entitled “Applicant’s Claim and Evidence”. This contains an extract of the delegate’s factual findings which rejects the applicant’s claimed fear of harm from a politician and his bodyguards, and finds he travelled to Australia for employment and that his delay in applying for a protection visa on arriving in Australia casts doubt on his credibility. Following this is a subsection “Our response to the above”, which does not engage with the delegate’s findings at all but states that Sri Lanka is corrupt, laws are not followed, protests occur everyday and notes the Prime Minister’s residence was burned down by mobs. This is followed by an extract from the May 2024 Australian Department of Foreign Affairs and Trade report on Sri Lanka commenting on anti-government protests in 2022 and 2023.
I invited Mr Malik to explain the purpose and relevance of the 2024 submission, noting it reads as a hybrid witness statement and legal submission. He did not address my query, replying that he studied the ‘country book’ and took the material from there because previously ‘the mobs disturbed President’s house’. I noted that while the submission purports to respond to the delegate’s findings it does not seem to do so in a meaningful way. For instance, while the delegate drew an adverse inference from the applicant’s delay in applying for protection, the submissions make no comment on the delay, why it occurred and why it was justifiable.
Consideration
I have a number of concerns with the applicant’s written material and oral testimony which cause me to doubt the reliability of his evidence generally and the veracity of his protection claims specifically. Notably, he has had the benefit of on going legal representation since preparing his visa application until present. However his evidence is afflicted by inconsistencies, variations and imprecision; and is mostly not corroborated by persuasive information. For the following reasons, I reject his claims regarding the asserted past instances of harm and his future fears of harm in Sri Lanka in their entirety.
Disability organisation
The applicant’s oral evidence about his involvement with the [Agency 1] and the problems this caused him was not persuasive. He struggled to explain why he was so committed to this voluntary role after only a few weeks that he defied threats of violence and one instance of actual violence in persisting to volunteer once the new [official] took over. He suggested that “we started and we could not just give up”. When I noted that he had only been volunteering for a few weeks prior to the first incident, and as such it was unclear why he could not just stop, he said that he liked the work and did it with passion and did not want to give up.
I asked him to explain to me what occurred the first time he and his brother were assaulted, noting he wrote that he thought he was going to die during the first attack. The particulars he provided were quite limited. He stated there were three or four very angry and vengeful bodyguards and he was worried for his life. Given this experience, I asked him why he would not stop volunteering after the first attack. He suggested he believed the police and politicians would do something about it. I noted he earlier told me the police did not help him when he complained to them about the threats from [Official B's] bodyguards, so given this it was unclear why he would think they would help this time. He told me that he learned in June 2017 that the police were aligned with [Official B]. Given his evidence that he was a friend of and supporter for [Official A] since 2011, I expressed that I had some doubts that he would be unaware of [Official B’s] strong influence until so late. He replied that he was young then and did not think through everything and it took him time to realise the police would not support him.
The applicant told me that he had only ever lived in [Town 1], and that his family moved to [Town 2] after he left Sri Lanka. I noted in his visa application form and in the statement he wrote that he himself moved to [Town 2] 6 months before he came to Australia. I noted that he had also told the delegate this when specifically asked during the interview. When I raised this inconsistency with him he told me that he never lived in [Town 2] and that this must be a mistake and that he would have no reason to lie about this. His shifting evidence on this point supports an inference against the reliability of his evidence.
I asked the applicant why, when he first arrived in Australia in December 2017 he did not apply for protection as soon as possible. He indicated that when he came to Australia he was planning on returning to Sri Lanka, but his parents later told him not to come back because the situation in Sri Lanka changed and was dangerous. When asked what changed, and he said the threat to his life was still there. He confirmed the threat to his life was also there when he left Sri Lanka, but when he stopped working [for the business 1] his neighbours and friends confirmed the risk were still there. I noted the this was no mention in his visa application of any recent update from neighbours and friends motivating him to apply for protection in October 2018. The applicant suggested there could be many mistakes in the visa application form because he was unsure what to say and what he was writing. I noted the applicant had the benefit of legal representation when he prepared the application, and at the start of the hearing he told me he considered the application was complete and accurate.
The applicant also told me that he delayed applying for a protection visa for around 10 months after arriving in Australia because initially he was working [for business 1s], then after this he did not have a job or money and needed to find a lawyer. Mr Malik similarly added that the applicant told him he did not have a job or money that is why he delayed applying. I noted that the [business 1 work] visa expired in June 2018 but he did not apply for protection until October 2018. When asked why he did not have enough money for a lawyer if he had just been working [for a business 1] for six months, the applicant replied that he had borrowed some money in Sri Lanka he had to repay and he had to send money to his parents.
The applicant has provided conflicting reasons for the delay. He has suggested both that he was planning to return to Sri Lanka from Australia but only decided to apply for protection when he was encouraged by his parents not to return, and also that he did not have enough money or a lawyer to apply any earlier. It raises serious doubts that the applicant, who has a legal representative, did not address the delay submitting his application earlier. For instance he could have done so when his visa was submitted, in the various resubmitted versions of the written statement, or in the submissions responding to the delegates findings that his waiting 10 months to apply impacted his credibility adversely. In this context, I do not find his reasons for waiting so long after arriving in Australia to apply for protection to be persuasive. I consider his conduct in delaying his protection visa application supports a conclusion that he did not sincerely fear returning to Sri Lanka at that point in time for any reason.
Some of the details in the October 2018 statement regarding the association are quite vague despite it discussing events that occurred during 2017. I note the applicant wrote he started volunteering “in 2017” and that the attacks were “on or about” May and June. Considering the visa application was prepared less than 18 months after the events in question, and his statement was prepared with the assistance of Mr Malik, I asked why the applicant was not more specific in providing details. He did not respond to my concerns but instead stated that while working [for the business 1] in Australia he realised the problems were still in Sri Lanka.
There is no mention in the employment section of the visa application form of the applicant ever undertaking volunteer work for [Agency 1]. When I raised this the applicant said maybe this was a mistake. He told me that when he prepared the visa application form he did not get much help and wrote what he felt like. I noted that he earlier told me that the reason he waited 10 months after arriving in Australia to apply for protection was because he needed to obtain legal assistance, and he has in fact been represented by Mr Malik since the application was prepared. Given the form specifically asked for details of any volunteer employment and that Mr Malik helped the applicant to prepare this form, this omission raises serious doubts.
The delegate did not accept the applicant was targeted due to volunteering for the [Agency 1], however the Tribunal submissions did not respond to those findings. When I asked the applicant if he has any proof to establish that this association exists, he suggested that general information about it could be easily obtained from the internet. Considering he has a lawyer who assisted to submit material with the visa application, before and after the delegate’s interview, and prior to the Tribunal hearing, I asked if there was a reason such material had not been submitted in support of his application to date. He then said that it was hard for him to provide evidence without going to Sri Lanka. I noted that he had just told me that this information could be obtained easily online. He then indicated that there are details about the organisation online but his name does not appear there. I did not locate any material online relating to [Agency 1] in [Town 1], Sri Lanka and the applicant has not submitted any such material to date. I also note that section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

A letter dated 1 March 2022 from [Friend A] was submitted to the delegate. That letter indicated he has known the applicant for 9 years as they lived near each other in [Town 1]. He confirms that the applicant and his brother were beaten by [Official B’s] body guards ‘on or about May 2017’.
During the hearing the applicant told me that [Friend A] is a friend from [Town 1] who lived in the next lane from his house and he knows him well as a friend and neighbour. They also worked together. [Friend A] was an [occupation 1] and the applicant got some part time work from him.
I noted that a 22 June 2024 hearing response form provided to the Tribunal describes [Friend A] as a member of the “[different agency name] like the applicant. Notably, not the [Agency 1 name]. The applicant said that [Friend A] worked at another place part time but also worked part time at “[Agency 1 abbreviated name]”. Prior to this, I asked the applicant a number of times how he knew [Friend A], and he never suggested that they both volunteered at the disability association. When I asked why that was the applicant did not provide a cogent response.
I explained that the letter dated 1 March 2022 from [Friend A] makes no mention at all of the writer being a member of any welfare organisation. The letter specifically mentions the applicant and his brother’s involvement in “an organization who helps the disabled persons” without specify which organisation, and gives no suggestion at all of the author having any involvement himself with the organisation. The applicant suggested that as [Friend A] was writing about the applicant and not himself, he did not mention his own involvement with the organisation.
On 13 July 2024 the Tribunal received a submission from Mr Malik, purporting to attached an updated letter from [Friend A], but which omitted that file. A letter from [Friend B] dated 25 June 2024 was attached twice. The letter from [Friend B] states that he has known the applicant for 15 years, and that the author is aware that the applicant and his brother volunteered for a disability organisation and were beaten by bodyguards of [Official B] as a result.
During the hearing Mr Malik produced two letters. One was the same 25 June 2024 letter from [Friend B]. The second was from [Friend A] dated 25 June 2024. This letter is almost identical to the earlier letter submitted on 1 March 2022 from the same author, and that the only change seems to be in the first line stating how long [Friend A] has known the applicant. Mr Malik suggested [Friend A] had known the applicant for 2 more years since the first letter was submitted, which is understandable but seemingly of no relevance to this review. I explained that I wanted to know what new information the more recent letter was seeking to convey that was not already before the Tribunal. As this new most recent letter was presumably obtained and submitted for some purpose, I invited Mr Malik to explain its relevance. Mr Malik did not respond to my query.
The 25 June 2024 letter from [Friend A] also makes no mention of him having any involvement with any disability welfare organisation. This letter was submitted to the Tribunal for a second time after the hearing, along with an affidavit/statutory declaration from [Friend A] sworn on 22 July 2024.
I have a number of concerns with [Friend A] affidavit/statutory declaration that to cause me seriously doubt it’s provenance. It asserts the [Official] who [Friend A], the applicant and his brother volunteered under the disability organisation was [Official C]-, not [Official A] as the applicant has claimed. It also contends that [Friend A] joined the “[a further variant of Agency 1 name]” in August 2016, not [Agency 1]. Furthermore, Paragraph 10 of [Friend A’s] statutory declaration is identical to paragraph a) page 2 of the undated submission/statement signed by both Mr Malik and the applicant which was filed prior to the Tribunal hearing. Both state: “Sri Lankan Government is corrupt, there is no security in the country, Laws are not followed, and protest are everyday occurrence .” This similarity is particularly stark given the consistent capitalisation of the word ‘Laws’ and the double spacing between ‘Sri Lankan’ and ‘Government’ and also before the final full stop in both documents. I am not prepared to give this document any weight in support of the applicant’s claims.
I do not accept that the applicant or his brother have ever had any involvement with the [Agency 1] at any time, or that they were ever targeted or harmed as a result. I reject these claims completely. His oral evidence on the threats and assaults he claimed to have received due to his voluntary work, and his responses to these, was imprecise, unpersuasive and I am not satisfied he was recounting lived experiences. Despite having a legal representative there is no mention of his volunteering work in the employment section of his visa application form. He has offered no material to support the existence of the disability organisation despite suggesting it was easy to find. The written material that he did provide to seek to corroborate these claims had a number of deficiencies. Furthermore, I do not accept that had [Friend A] been involved with [Agency 1] that this would be omitted from his letter of support attesting to the applicant’s problems stemming from his own work with the association. Moreover, the various letters from [Friend A] refer to the association by different names and suggest the applicant worked under a different [Official], not [Official A], and are not reliable.
Political campaigner
There is no reference in the visa application, or the various written reiterations of his claims since lodgement, to the applicant having been a political campaigner for [Official A]. He has since suggested that he was a strong supporter and close friend of this person, because they are a similar age and from the same area. He confirmed to me during the hearing that his work supporting [Official A] did not cause him any problems at all before 2017 and his volunteer work, because at that time his opponent was not at a high level. The applicant told me that [Official A] is from [Party 1], and that he supports this party. [Official B] is also from the [Party 1] party but they are opponents.
I asked him why there is no mention at all in his visa application of him ever being involved in political campaigning. He replied that he believes this was a mistake and that he was not careful and did not understand what was written. I noted that he had legal assistance in preparing his application, so I may not accept that the various significant omissions in his application were simply oversights. He said that he gave all the information to the lawyer and he does not know why some things are missing. I expressed to the applicant that I may not accept that he was in fact a political campaigner, given it was not mentioned in the visa application. I noted that the delegate raised similar concerns with the applicant during the interview, but no further submissions or information have been provided to address them.
The applicant told me that he has had no political involvement of any kind while in Australia, because he had enough punishment for what he did and he did not want to continue. If he were to return to Sri Lanka tomorrow, he said he is not thinking of doing any political activities there.
The applicant has not provided any supporting material to corroborate his claimed past political involvement. He only claims to fear being harmed in Sri Lanka from [Official B] and his associates due to supporting his opponent, [Official A]. I do not accept that if the applicant had in fact been a supporter, friend and long term campaigner for [Official A] well prior to 2017 as is now claimed, that this would not have been raised in the visa application which he prepared with help from his legal representative. I do not accept that the applicant engaged in campaign work for, or publicly supported, [Official A]. I can accept that he may be in favour of [Party 1], but on the material before me I do not accept that he has ever been politically active in anyway, including in taking action in support of [Party 1] or any other political entity. In light of his oral evidence during the hearing, I am satisfied that were the applicant to return to Sri Lanka he would not be politically active in any way in the reasonably foreseeable future.
Political unrest
The applicant alluded to the recent economic and political changes in Sri Lanka having caused more danger to him and a lot of people. Submitted to the Tribunal by Mr Malik was the 2024 DFAT report, which provides an update on recent developments in Sri Lanka.
Sri Lanka fell into deep economic crisis in early 2022, which caused significant humanitarian hardship, deepened poverty and created a cohort of newly poor.[1] Large-scale, countrywide demonstrations in 2022 (Aragalaya) brought down the government of Gotabaya Rajapaksa. Triggered by the economic crisis, the Aragalaya drew from across Sri Lanka’s ethnic, religious and socioeconomic spectrum. Protests were centred in Colombo and attracted people from other parts of the country. Over 4,000 people may have been arrested in connection to the Aragalaya protests, although precise numbers are difficult to verify.[2]
[1] Department of Foreign Affairs and Trade (‘DFAT’), DFAT Country Information Report - Sri Lanka', 2 May 2024.
[2] DFAT, DFAT Country Information Report - Sri Lanka', 2 May 2024.
DFAT assesses that protest activity has reduced significantly since 2022, although occasional smaller-scale anti-government demonstrations continue to occur, including in the context of austerity measures, cost-of-living pressures and delayed local elections. DFAT assesses that people arrested for participating in the Aragalaya protests face a low risk of official harassment and discrimination, including in their ability to access state protection or services. Protesters more generally face a low risk of violence, harassment or discrimination during and after protest activity.[3]
[3] DFAT, DFAT Country Information Report - Sri Lanka', 2 May 2024.
The applicant told me clearly that he has had no political engagement at all during his time in Australia. Despite the recent notable developments in Sri Lanka, at no time has as sought to take part in any political actions, as such online. The applicant also indicated that were he to return to Sri Lanka he would not become politically active in anyway in the reasonably foreseeable future.
While I accept that there has been some notable political and economic developments in Sri Lanka recently, I do not accept this has imparted any profile of interest on this applicant in the foreseeable future in that country. The country information before me clearly indicates that protest activity has reduced significantly since 2022. There is no suggestion that the applicant’s family or anyone known to him have been threatened or harmed in any way related to the recent political and economic situation. Moreover, I do not accept that this applicant has been politically active in any way to date. His evidence to me was that he has not been active in any way while in Australia and that he would not seek to become so in the foreseeable future were he to return to Sri Lanka. I do not accept that the applicant would take part in any protests or demonstrations in Sri Lanka in the reasonably foreseeable future. I do not accept that this applicant faces a real chance of any harm in the foreseeable future in connection with such protests or demonstrations.
Returning asylum seeker
I accept that were the applicant to return to Sri Lanka he would do so after having requested asylum here. The applicant has not himself expressed that he fears any future harm on this basis, though the delegate considered this claim in his decision.
The applicant departed Sri Lanka lawfully on his own passport without incident via the international airport. As such he would not be of interest as an illegal departee were he to return to that country[4]. There is nothing before me to suggest the applicant has any criminal associations, or that he has been connected with any groups or causes of concern to the Sri Lankan authorities, including Tamil separatist groups, diaspora activists, war commemorations or investigations, or people smuggling.[5] He affirmed to me during the hearing that he has not been politically active in any way during his time in Australia.
[4] DFAT, DFAT Country Information Report - Sri Lanka, 23 December 2021.
[5] DFAT, DFAT Country Information Report - Sri Lanka', 2 May 2024; DFAT, DFAT Country Information Report - Sri Lanka, 23 December 2021.
The applicant renewed his Sri Lankan passport while in Australia. He told me that he has no plans to travel but felt that he should renew this document when the old one expired. He indicated that other than waiting a while to obtain the new document, he had no issues in renewing his passport. I consider his decision to renew this document is not suggestive of him sincerely fearing harm from the Sri Lankan authorities for any reason, including in connection with his protection visa application in Australia. Moreover, that he was granted this document without incident also suggests that he does not have any profile of interest with the Sri Lankan authorities for any reason. On the available material I do not accept that the applicant would be of any interest to the authorities or any group in Sri Lanka were it to become known that he unsuccessfully requested a protection visa in Australia.
Conclusions
On the material before me I am not satisfied that the applicant was ever of any adverse interest to any person or group for any reason before he left Sri Lanka. As set out above, I have not accepted that he ever volunteered for [Agency 1] or that he ever campaigned for or supported [Official A] politically. Nor do I accept that he or his brother was ever targeted, threatened or harmed as a result. I do not accept that applicant’s family have continued to receive threats since his departure from Sri Lanka. As I do not accept that these past events occurred, I am satisfied that the applicant do not have a real chance of any harm in the foreseeable future because of them.
I accept that the applicant would be returning to Sri Lanka after recent notable political and economic developments there, and after unsuccessfully requesting a protection visa in Australia. However, as set out above, I do not accept that he has become of adverse interest to any group or with the authorities in Sri Lanka for these reasons. I do not accept that the applicant faces a real chance of any harm in the foreseeable future in Sri Lanka because of recent political and economic developments in that country, or because of his unsuccessful Australian protection visa application.
On the evidence before me I am not satisfied the applicant faces a real chance of serious harm in the reasonably foreseeable future for any reason were he to return to Sri Lanka. The applicant does not have a well-founded fear of persecution for any s.5J(1)(a) reason. The applicant is a not a refugee per s.5H.
A ‘real risk’ and ‘real chance’ involve the same standard.[6] For the reasons set out above the applicant also does not face a real risk of any harm including treatment amounting to significant harm were he to return to Sri Lanka. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk he will suffer significant harm.
[6] MIAC v SZQRB (2013) 210 FCR 505.
For the reasons given above I am not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c),and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Simmons
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4394

9 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice