2206447 (Refugee)

[2024] AATA 4155

2206447 (Refugee) [2024] AATA 4155 (26 July 2024)

DECISION RECORD

DIVISION:	Migration & Refugee Division
CASE NUMBER:	2206447
COUNTRY OF REFERENCE:	Sri Lanka
MEMBER:	Fraser Robertson
DATE:	26 July 2024
PLACE OF DECISION:	Perth
DECISION:	The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 July 2024 at 8:41am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – threats from money lenders – extortion – fear of killing – delay in applying for protection – marriage to an Australian citizen – attempts to renew passport – return visits to Sri Lanka – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2, Schedule 3

CASES

ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

Fox v Percy [2003] HCA 22; 214 CLR 118

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757

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

1. The applicant is a Sri Lankan national who first arrived in Australia in October 2012 on a student visa. That visa ceased and he became an unlawful non-citizen in October 2015.

2. The applicant applied for a protection visa in October 2017, claiming to fear harm from a moneylender in Sri Lanka. Following an interview, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa. The delegate concluded that the applicant's claims were ‘contrived and [that] the account of events on which his protection claims are based is false.’

3. The applicant has applied to this Tribunal to review the delegate's decision to refuse to grant him a protection visa. He appeared before the Tribunal to give evidence and present arguments on 17 July 2024, assisted by a Sinhalese interpreter. The applicant's mother also gave evidence.

4. I have determined the applicant's claims are not credible and that he does not satisfy the criteria for the grant of a protection visa. These are my reasons.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (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).

   Refugee criterion

6. Section 36(2)(a) of the Act 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 decision‑maker 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.[1]

   [1]        Migration Act 1958 (Cth), s 5H(1)(a).

7. 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.[2] Persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]

   [2]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [3]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.

   [4]        Migration Act 1958 (Cth), s 5J(4)(c).

8. A fear of persecution will be ‘well founded’ if there is a ‘real chance’ that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A ‘real chance’ is a prospect that is not ‘remote’ or ‘far‑fetched’, but does not require a likelihood of persecution on the balance of probabilities.[6] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which appear in the attachment to this decision.

   [5]        Migration Act 1958 (Cth), ss 5J(1)(b)–(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [6]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

   Complementary protection criterion

9. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the ‘complementary protection criterion’ under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a ‘necessary and foreseeable consequence’ of return to the receiving country.[7]

   [7]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

10. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act.[8] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.

    [8]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    Credibility

11. In determining this application, it is necessary to make findings of fact. The task of
    

    [9]        See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.

    [10]       See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ); see also, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).

    [11]       ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).

    [12]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].

    fact-finding may involve an assessment of an applicant’s credibility. Assessing credibility is an inherently difficult task,[9] which should be conducted carefully, fairly and reasonably.[10] Inconsistencies in an applicant’s account may or may not be significant.[11] I should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.[12]

    ANALYSIS, FINDINGS AND REASONS

12. There is no suggestion that the applicant satisfies s 36(2)(b) or (c) of the Act. The issue in this application is whether the applicant satisfies the refugee criterion for protection contained in s 36(2)(a) of the Act or the complementary protection criterion contained in s 36(2)(aa). In this case, that question is answered by asking whether the applicant faces a real chance of serious harm, or a real risk of significant harm, if returned to Sri Lanka.

13. The applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[13] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[14] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[15]

    [13]       Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).

    [14]       SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

    [15]       CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

14. In making my decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[16] and the Department of Foreign Affairs and Trade ('DFAT') Country Information Report.[17]

    [16]       See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No. 84 made under that section.

    [17]       DFAT Country Information Report Sri Lanka, Department of Foreign Affairs and Trade, 02 May 2024, 20240502102807 ('2024 DFAT Report'), see in particular [2.26]–[2.29].

    DOES THE APPLICANT SATISFY THE REFUGEE CRITERION?

15. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or is for the reason claimed.[18]

    [18]       Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).

16. I have listened to the applicant's interview with the Department and considered the evidence provided to the Tribunal by the applicant and his mother. I refer to that evidence where relevant to my decision below.

17. I accept that the applicant is Sinhalese and Buddhist, as claimed. I also accept that he was born and raised in Kandy, in Central Sri Lanka.

18. The applicant claims that he and his father borrowed money from an unofficial moneylender in Sri Lanka in 2012 to fund the applicant's travel to Australia to study. In his protection visa application, the applicant claimed that around AUD[amount] was borrowed, and the amount to be repaid was around AUD[amount], which was repayable within a year. The debt, the applicant claims, was acknowledged by both the applicant and his father.

19. The applicant claims that when he returned to Sri Lanka for his father's funeral, in December 2013, to defer an upcoming repayment, he agreed with the moneylender to add AUD5,000 to the sum to be repaid. The applicant claims he had no choice but to agree to this.

20. The applicant claims that when his father passed away, an insurance payout of between $10,000 and $15,000 was paid. Those funds, the applicant claims, were used to pay the moneylender, and discharge the loan. Consequently, by January 2015, the moneylender had been repaid in full.

21. Considering available country information[19] it is plausible, and I am prepared to accept that:

    (a)the applicant and his father borrowed around AUD[amount] from an unofficial moneylender in Sri Lanka;

    (b)the applicant and his father committed to repay around AUD[amount] to that moneylender within a year;

    (c)when the applicant and his father were unable to repay those funds within a year, the applicant agreed to pay around an additional AUD5,000 in consideration for additional time to repay the money borrowed; and

    (d)by January 2015, the moneylender had been repaid in full using funds received from an insurance payout that occurred following the father's death.

    [19]       2024 DFAT Report, [2.26]–[2.29].

    Does the applicant face a real chance of harm?

22. In their written and oral evidence, the applicant and his mother claim that a few months after the moneylender had been repaid in full, his mother received demands for around a further $20,000 or $25,000 (the Demand).[20] The evidence of both the applicant and his mother was essentially that the moneylender has continued to press the Demand by making threatening phone calls to the mother, threatening to harm the applicant if he returned to Sri Lanka and on one occasion in August 2017 sending people to the mother's house to threaten the applicant if he returned to Sri Lanka.

    [20]       See statement of claims in support of protection visa application dated 12 October 2017 ('Statement of Claims'). Whilst the applicant has been inconsistent in relation to the amount that was demanded, I am satisfied that those inconsistencies have been adequately explained as relating to the exchange rate that he used when calculating the amount demanded (2.5 million rupees) into Australian dollars. I draw no adverse conclusion in respect of the different amounts used.

23. As I have accepted the applicant's underlying claims to have borrowed money and repaid that sum in full, I considered whether I should give him the benefit of the doubt in relation to the balance of his claims.[21] However, I am not so satisfied. Essentially, whilst the applicant's evidence about having borrowed and repaid the moneylender was consistent and credible, the evidence material to the applicant's claims to fear ongoing harm from the moneylender contains inconsistencies and lacks credibility. For reasons which I will explain, I do not accept that:

    (a)the Demand was made or has continued to be pressed;

    (b)in August 2017 (or at any other time), the moneylender sent ‘two thugs’ or anyone else to talk to the applicant's mother and threaten to harm the applicant when he returned to Sri Lanka; and

    (c)every few months, the moneylender or his agents call the applicant's mother and reiterate threats to harm the applicant when he returns to Sri Lanka.

    [21]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].

    Inconsistent claims

24. The applicant has given materially inconsistent evidence about what happened following the Demand. At the hearing before the Tribunal, the applicant's evidence was that he did not pay any amount to the moneylender following the Demand. But in his written claims that accompanied his protection visa application, the applicant claims that he ‘forced [himself] to pay [and] did pay for few months but [he] just could not continue to pay this blood sucker’[22] and that the threatening calls started when he stopped making payments.

    [22]       See Statement of Claims.

25. Both accounts cannot be correct as they are inconsistent. The applicant attempted to explain this inconsistency in two ways. The first was by vaguely claiming that his previous solicitor would do things unilaterally without the applicant's consent. Second, he claimed the statement might have been based on something his mother had said, or his mother may have made some payments.

26. I do not accept those explanations. The applicant conceded that he reviewed the statement before it was lodged. Considering that concession, it was telling that when asked why his Statement of Claims contained that evidence, the applicant did not seek to offer an explanation.

27. It is reasonable to expect the applicant to provide a consistent account of whether, after the loan had been repaid in full, he made any payments in response to the Demand. I find his inconsistent evidence in this regard significantly undermines the credibility of his claims to fear harm from the moneylender.

28. As I explain below, the applicant has also made inconsistent claims about the delay in his application for protection.

    Inherent implausibility of claims

29. As the applicant agreed, the main motivation of unregistered moneylenders is profit. He referred to, and I agree, that the imposition of high interest rates readily demonstrates this.

30. Against that background and in the applicant's present case, the moneylender has not received any payment since the Demand was made nine years ago in 2015. On the applicant's case, for about two years until August 2017, the only action the moneylender took was to make phone calls, threatening to harm the applicant if he returned to Sri Lanka. In August 2017, the evidence of the applicant and his mother suggests that the moneylender sent two people to his mother's home to personally make threats to harm the applicant if or when he returned to Sri Lanka. Following this, there is no evidence that any person attended the mother's home to make further threats, but phone calls would occur every couple of months. His mother's oral evidence was that the last phone call happened in December 2023.

31. The apparent logic of the behaviour of the moneylender is unclear. If the moneylender was genuinely interested in harming the applicant or persuading him to make payments towards the Demand, the threats made over the years have failed to achieve this. The applicant has neither paid any amounts nor returned to Sri Lanka for over nine years. Threatening to harm a person, who they knew is overseas, if or when they return to the country seems to defy logic. Such threats will not likely prompt any person to return to the country. Those threats have been wholly ineffective in prompting payment. For over nine years, all the threats have achieved is to maintain the status quo, namely the applicant failing to make any payments at all towards the Demand or to cause his return to Sri Lanka. Yet the moneylender has not changed strategies for some inexplicable reason. Accepting the applicant's claims related to the harm feared from the moneylender requires acceptance that the moneylender has repeatedly continued to do the same thing for nine years, expecting a different result – yet without any apparent reason to expect any change.

32. The applicant claims the moneylender is willing to not only attempt to extort money from him but also be capable, in the sense of being ready, willing and able to inflict harm, of inflicting serious harm, including death, upon him if he returns to Sri Lanka. In the circumstances, it is plausible and likely that such a person would have threatened to harm the applicant's mother. Such a threat is much more likely to have prompted a response by a person in the applicant's claimed position. It is much more likely than simply threatening to harm a person if they return to the country when, for nearly a decade, they have not done so. Indeed, the suggestion that the moneylender has wasted the last nine years acting in the extraordinarily ineffective way that is claimed is implausible.

1. In response, the applicant claimed that his mother seldom lived at her home anymore and speculated that people may have attended her home, and she was not there. Such a claim was speculative and is unsupported by evidence. When I explored this with the applicant, he claimed his mother would sell the house and relocate but was worried about him. He claimed that if his mother knew he was not coming to Sri Lanka again, she would sell her home and move. He claimed that she was not doing so because the land had sentimental value, and there was a prospect of the applicant returning. When I suggested that the prospect of the applicant returning might be, if he was to be believed, a strong reason for his mother to relocate as it would make the applicant and his mother harder to locate, the applicant claimed that doing so was pointless because Sri Lanka is a small country, and they could be easily located.

2. Having considered the evidence of the applicant and his mother, I find the claimed conduct of the moneylender to be implausible. Had the moneylender been motivated and interested in extracting payment from the applicant, or harming him, then the claimed actions are not consistent with that purpose. Given the claimed persistent failure to pay over nine years, it is implausible that the threats did not escalate more significantly, that threats were not made to harm the applicant's mother, or that the applicant's mother was not targeted with harm.

   Delay in applying for protection

3. The Demand was, as claimed, made in early 2015, yet the applicant did not apply for protection until October 2017. He originally sought to explain this delay because he was unaware that he could apply for a protection visa until his partner (now wife) advised him of the possibility of seeking a protection visa.[23] At the hearing before the Tribunal, the applicant's evidence was that he was unaware of the ability to obtain a protection visa until his (male) friend had told him of that possibility. When I asked the applicant about this inconsistency, he claimed he could not remember what he said at the interview.

   [23]       Delegate's decision, pp. 4–5.

4. The applicant indicated that he had made enquiries about an alternative visa before he became unlawful but could not afford to apply for another visa. Yet he did not explain why he could not seek or obtain advice about other, lower-cost visa options that might have been available to him (such as a protection visa). Given the threats that were made, the applicant's failure to be more proactive in seeking advice about whether he could pursue a protection visa cast doubt over the credibility of his claims to fear harm if he returned to Sri Lanka. I do not accept that the applicant had adequately explained his delay in seeking protection.

   Other matters

5. The applicant has been married to an Australian citizen since 2019. By operation of Schedule 3 to the Regulations, the applicant cannot apply for a partner visa whilst onshore. The applicant claims he could have easily obtained a permanent visa by returning to Sri Lanka and applying for one. He claims his lack of willingness to do so supports his claim to fear harm in Sri Lanka. Yet, his lack of willingness is also explicable for other reasons, including not wishing to be separated from his wife whilst the visa is processed. Even though I accept that the applicant could apply for a partner visa overseas if he chose to do so, his lack of willingness to do so does not overcome my concerns about the credibility of the applicant's claims.

6. I have also considered the claim that the applicant's mother ‘sent’ her daughter (the applicant's sister) to [Country 1] because of the harm feared. There was no evidence that the applicant's sister was threatened. That claim did not stand up to scrutiny at the hearing. When explored, it became clear that the applicant's sister married a Sri Lankan man who lived and worked in [Country 1] before their marriage. They returned to [Country 1] after their marriage. I find that the applicant's sister moved to [Country 1], where her husband lives and works. I am not satisfied that it was because of any fear of harm. Understandably, the applicant's sister would move to the country in which her husband had his life. I am not satisfied that she did so to escape the moneylender.

   Inability to obtain a passport

7. At the hearing, the applicant claimed he sought to renew his Sri Lankan passport in 2020. He explained that in doing so, the Sri Lankan consulate sought a copy of the visa on which he originally entered Australia. The applicant could not provide that. Subsequently, the applicant obtained a copy of that visa. He claims that when he sought to give that document to the Sri Lankan consulate, they claimed that they had lost his file and required him to apply again and pay the fee again. The applicant was unhappy with this response and has not made a further application. His evidence was that he did not know whether he could obtain a passport. I accept these matters.

8. The applicant did not claim to face harm on this basis. However, for completeness, I have considered the difficulties the applicant has faced in obtaining a passport and accept that the applicant may be returning to Sri Lanka on a temporary travel document.

9. The applicant did not depart Sri Lanka illegally. He has returned and departed Sri Lanka twice since he first came to Australia.[24] He did not claim, nor is there any evidence, that he had any difficulty re-entering or departing Sri Lanka.

   [24]       Delegate's decision, p. 1.

10. Country information indicates that on arrival at Colombo Airport, failed asylum seekers go through immigration, where their identities are verified.[25] This process is swift for returnees with a valid passport; for those returning on a temporary travel document, the process will take longer. According to in-country sources, failed asylum seekers returning on charter flights were processed much quicker, as their identities had been verified in advance.[26] DFAT is unaware of people being mistreated[27] and there is no suggestion that the applicant would have a profile that would be of adverse interest to the authorities on return to Sri Lanka, whether on a temporary travel document or otherwise.[28]

    [25]       2024 DFAT Report, [5.38].

    [26]       2024 DFAT Report, [5.38].

    [27]       2024 DFAT Report, [5.39]; [5.47].

    [28]       As to which see 2024 DFAT Report, [5.39]–[5.43].

    Resolution

11. The above matters cause me to seriously doubt the credibility of the claims and evidence relied upon by the applicant. I do not accept that the credibility of the applicant's claims about the initial loan or the consistency of his and his mother’s evidence overcomes my conclusion that the applicant's claims related to the harm feared from the moneylender are not credible.

12. In essence, I accept that the amount borrowed was repaid in full in or around January 2015. I do not accept that the applicant, or his mother, has had any further involvement or contact with the moneylender since that time. I do not accept that the moneylender made the Demand or that it has continued to be pressed. I am not satisfied that since the Demand was allegedly made, the moneylender or his agents have called the applicant's mother every few months and reiterated threats to harm the applicant when he returns to Sri Lanka unless payments are made. I do not accept that in August 2017, or at any other time, the moneylender sent ‘two thugs’ or anyone else to talk to the applicant's mother and threaten to harm the applicant when he returned to Sri Lanka.

13. I accept that the applicant may return to Sri Lanka on a temporary travel document. That said, I find that he did not depart Sri Lanka illegally and that his profile would not be of adverse interest to Sri Lankan authorities. The country information to which I have referred does not support a conclusion that the applicant faces a real chance of serious harm nor did the applicant refer to any other country information which would support such a conclusion.

14. I have considered the above claims individually and cumulatively. Having done so, I am not satisfied that the applicant faces a real chance of harm, now or in the reasonably foreseeable future, if he was to return to Sri Lanka. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) of the Act.

15. The applicant does not satisfy the criterion in s 36(2)(a) of the Act.

    DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION?

16. To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.[29]

    [29]       Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

17. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[30] As the factual bases of the claims under s 36(2)(a) and s 36(2)(aa) overlap, I refer to and rely on those findings when considering the complementary protection criterion.[31] For the same reasons, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

    [30]       Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).

    [31]       DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.

18. The applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.

    CONCLUSION

19. The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).

20. I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

21. There is no suggestion that the applicant satisfies s 36(2) based on 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 criteria in s 36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Fraser Robertson
    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.