2214370 (Refugee)

2214370 (Refugee) [2023] AATA 4769 (7 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Dan Jebsen
CASE NUMBER:  2214370
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Wayne Pennell
DATE:7 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 November 2023 at 5:27pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Ethnicity – Sinhalese – Religion – Christian – political opinion – member of the political party – Sri Lanka Freedom Party (‘SLFP’) – members of the opposition United National Party (‘UNP’) had threatened to kill the applicant – claimed threats made to the applicants family – lack of credible evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Cases
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170
Kavan v Minister for Immigration and Ethnic Affairs [2000] FCA 370
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Zhang Su Rong v Refugee Review Tribunal and ANOR [1997] FCA 423
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 dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 20 September 2022.
The applicant claims to be a citizen of Sri Lanka and applied for a Protection visa.[2] When assessing the application, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk he would suffer significant harm. Therefore, the delegate refused to grant the visa[3] on the basis that he was not a refugee as defined by the Act[4] and he was not a person in respect of whom Australia has protection obligations.[5]
[2]The applicant’s application was received by the Department on 18 March 2019.
[3]The delegate’s refusal was made on 20 September 2022.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[6] At a subsequent time, the Tribunal sent a letter to him and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. He was invited to attend an in-person review hearing scheduled for 3 November 2023. The applicant accepted that invitation and attended the scheduled hearing with his representative.
[6]On 28 September 2022.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[7] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.
[7]Migration Act 1958 (Cth), s 36.
[8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
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 Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]
[9]Migration Act1958 (Cth), s 36(2)(a).
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.[10] 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.[11]
[10]Migration Act1958 (Cth), s 5H(1)(a).
[11]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]
[12]Migration Act 1958 (Cth), s 5J(1).
[13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]
[14]Migration Act 1958 (Cth), s 36(2)(a).
[15]Migration Act 1958 (Cth), s 36(2)(aa).
[16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17]
[17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]
[18]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Sri Lanka and provided a copy of his passport to authenticate this claim.[19] The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Sri Lanka is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]
[19]The applicant’s passport was issued in Sri Lanka [in]July 2009.
[20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21]
[21]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S BACKGROUND AND CLAIMS
[22]Migration Act 1958 (Cth), s 499.
Background
The applicant is a Sri Lankan national of Sinhalese ethnicity. He was born into a Buddhist family, although he says that he is now a Christian. His parents and his two sisters still reside in Sri Lanka.
The applicant said that from 2005 to 2010, he worked in Kandy as a member of the staff of the [Mr A], who was at that time a member of the Sri Lankan parliament. The applicant said that [Mr A] was a member of the political party, Sri Lanka Freedom Party (‘SLFP’).
The applicant also claimed that he was a member of the SLFP when he worked for[Mr A], however in reality his testimony at the review hearing showed that he was not a paid member of the political party, but rather he was a supporter and he helped out with various aspects of the party’s activities such as filling in forms, attending rallies, and ‘door knocking’ of constituents. [Mr A]did not accompany him on those activities and he was not paid money for his services to the political party, but instead received meals as consideration for his work.
The applicant claimed that because he had been employed with[Mr A], he (the applicant) was known to be very close to[Mr A]’s political affairs because he had worked with him during elections. Notwithstanding that, when asked by the Tribunal what elections those were, he could not tell the Tribunal what elections those were, and he was not aware of what SLFP’s philosophies were, or what the political party’s ideology was. His excuse for not knowing those things was that he was too young and all he did was fill out forms for the political party inside an office. The Tribunal notes that he was aged [age] when he started working for [Mr A]and aged [age] when his employment ceased, and the Tribunal considers that he was a mature person at that time.
When a careful assessment is undertaken of his role within the SLFP or the office of[Mr A], the Tribunal finds that the applicant was not a registered member of the political party or that he held any substantial position of authority or recognition within the SLFP. The Tribunal is satisfied that he was an unpaid supporter of the party who undertook a very minor role in respect to political campaigning.
The applicant went on to explain to the Tribunal that after he finished working for [Mr A]in late 2010, he relocated from Kandy to Colombo where he found work at [Company 1]as a[Job 1]. Over time he progressed in his employment, and by 2018 he was the[Company 1]’s[Job 2]. He said that during his time in Colombo, he did not get involved in politics. Occasionally, during his days off work, he returned to Kandy to spend time with his family, friends and his social group.
In 2018, he was employed by [Company 2]and he later arrived in Australia. For completeness, the following chronology is provided to explain the applicant’s migration history since his arrival in Australia:
[On] Apr 2018       Transit (subclass TX-771) visa granted.
[On]Jun 2018        Arrived in Australia.
22 Jun 2018          Transit visa ceased.
[On] Oct 2018       Departed Australia.
[On] Nov 2018      Arrived in Australia on a [particular]visa.
[On] Nov 2018      Departed Australia.
[On] Nov 2018      Arrived in Australia on a [particular] visa.
15 Dec 2018[Particular]visa ceased. The applicant became an unlawful non-citizen.
18 Mar 2019         Applied for a protection (subclass XA866) visa.
2 Apr 2019            Bridging C (subclass 030) visa granted with no work in Australia         condition attached.
30 Sep 2019         Bridging C visa ceased; subsequent Bridging C visa granted with no work in              Australia condition attached.
18 Nov 2020         Bridging C visa ceased; subsequent Bridging C visa granted and still in          effect. Visa contains a condition that allows the applicant to be employed.
24 Aug 2022         Applicant interviewed by the delegate.
The applicant explained that after making his application for a protection visa there was a significant period of time when he could not work but was eventually granted a visa which allowed him to work in Australia. He later made his way to [Town 1][in] Queensland where he is currently employed as a[Job 3].
In respect to his current employment, the applicant provided to the Tribunal two newspaper clippings from the [Town 1]newspaper and a letter from the Mayor of the [Town 1]Council. Those documents are relied upon so far as his good character.
The Tribunal acknowledges that the letter from the mayor of the local regional council speaks very highly of the applicant so far as his good character, and there is a strong flavour within the letter that the applicant is well thought of and respected by the residents and business owners in [Town 1]. The Tribunal however notes that the contents of the letter do not refer to the applicants claims or his reasons for making them, and as such the Tribunal finds that so far as the applicant’s application for a protection visa, it provides little probative value.
Claims
To support his application for a protection visa, the applicant provided a number of documents to the Tribunal. Doing its best to describe each of the documents, the Tribunal is satisfied they are:
(a)Applicant’s statement (2 pages) dated 18 March 2019 lodged with his protection visa application. The Statement outlines his claims;
(b)Single page letter dated 25 January 2019 purportedly signed by[Mr A];[23]
(c)Single page affidavit from the applicant’s father dated 6 February 2019;[24]
(d)Single page letter purportedly from[Mr B], a Member of [a]Council dated 2 February 2017;
(e)A two page document in a language other than English purportedly being a handwritten police document of a complaint (untranslated version) made by the applicant’s sister dated 14 December 2018;[25]
(f)A single page document of an English translation of the police complaint document;[26] and
(g)A three page document containing the untranslated police complaint document and an English translation of that document.[27]
[23]Received by the Tribunal on 7 October 2023.
[24]Received by the Tribunal on 7 October 2023.
[25]Received by the Tribunal on 7 October 2023.
[26]Received by the Tribunal on 7 October 2023.
[27]Received by the Tribunal on 27 October 2023.
The Tribunal canvassed with the applicant if he intended to call any witnesses at the review hearing, in particular any of the purported authors of those documents described above; being [Mr A], [Mr B], the applicant’s father and the applicant’s sister. He said that he was not relying upon any of those people as witnesses.
The applicant claimed that because of his employment, affiliation and support of [Mr A]and the SLFP, members of the opposition United National Party (‘UNP’) had threatened to kill him. He said that most of the incidents happened during the 2018 local government elections.
He went on to relate his involvement in an incident when members of the SLFP and the UNP clashed in a street fight in Kandy. He said that each group consisted of about 20 supporters and he described that during the fight he was ‘smashed in the face’, however he considered that this was not a big issue. He also said that although being smashed in the face hurt, he was not injured and nor did he require any medical treatment. When assessing that evidence, the Tribunal is satisfied (and so finds) that the street clash between the groups was nothing more than an altercation more akin to a melee between two opposing sets of political supporters, of which there was no evidence or suggestion that the applicant was specifically targeted for harm by the opposing group, or by any individual member from within that other group of supporters.
Following the street clash between the opposing supporters, he returned to his work in Colombo. About a month later he returned (by bus) to Kandy. It is the Tribunal’s view that by him returning to Kandy a month after the street clash that this is an indication that he did not have any fear or concerns of returning back to Kandy.
The applicant explained that when he got off the bus in Kandy he felt as though he was being followed. He told the Tribunal that as he walked along the street, he heard a motorcycle coming up from behind him and it was slowing down. He saw two people on the motorcycle, and they were both wearing helmets. When they got close to him, he saw the pillion passenger pull a metal object out of the top of his pants. The applicant panicked and pushed out at the people to push them away. As he did this, the motorcycle and the two people tumbled over and he ran away from them.
The Tribunal observed that within the delegate’s decision record, there were discussions about this same incident where the applicant told the delegate a similar set of circumstances. He said that after the street fight with the other supporters, he went back to Colombo, but returned to Kandy on 20 March 2018. His version of what transpired in the alleged interaction between him and the two people on the motorcycle differs slightly between what he told the delegate to what he said in his testimony at the review hearing.
The Tribunal particularly questioned him as to the object he saw the pillion passenger pulling from the top of his pants. The applicant said that he could not say that it was a firearm, but described it as a metal object. Yet, within the delegate’s decision record which the applicant provided to the Tribunal, it is recorded that the applicant told the delegate:
….. he arrived on a bus and when he started walking he saw a man on a motorbike coming behind towards him with a gun. He said that he pushed the person who was about to shoot him and the motorbike fell and he run to the other side. However, he subsequently stated that there were two people speeding towards him from behind him and one of them had a gun aimed at the applicant and was about to shoot him when the applicant pushed him and run away and they did not shoot.
When the difference in the two versions were identified to the applicant, the applicant’s indication to the Tribunal was that all he saw was the person holding something which he thought was made of metal.
The applicant continued to tell the Tribunal that when he ran away, he went to a friend’s house where he stayed the night. The next day his friend took him to a different bus station from the one he usually used and he returned back to Colombo. He said that he did not return to Kandy again and nothing further has happened to him.
When asked if he made a complaint to the police in Colombo about what happened, he could offer no reason for not making a complaint to the police except that he was scared and he wanted to hide.

When analysing the circumstances as the applicant claims happened, he has never said that these people associated with the motorcycle called out his name, or said that they were going to harm him or they were going to kill him. Nor does he suggest that any reference or comment was made about his connection with the SLFP or any politician, and although the applicant claims that this incident was politically motivated, the Tribunal is satisfied that his own evidence suggests otherwise.
The applicant claimed that because he feared for his life in Sri Lanka, he had to go overseas. He obtained employment on a [Company 2] and left Sri Lanka. Sometime in September to October 2018 when he was in Australia, he received a telephone call from his sister who told him that two men had come to the family home asking to speak to the applicant and they had pretended to be his friends. There was no suggestion by his sister that these people made any threats or indicated in any way that they made any reference to their presence at the house being connected to any politically motivated act.
The Tribunal notes that apart from telling the Tribunal about that incident, he had not previously mentioned it within his application for a protection visa; nor did he refer to the incident when he was being interviewed by the delegate and it is not contained within his statement that he used to support his protection visa application. As it is later explained in these reasons, the Tribunal rejects this claim. Notwithstanding that, a theoretical view is that it is not known who those people were, or if their intentions were anything other than looking for the applicant because they were his friends. None of the facts and features of what is alleged to have transpired between those people and the applicant’s sister give rise to any probative support for the applicant’s claim that he has a well-founded fear of returning to Sri Lanka.
The applicant referred to a second visit his sister received in December 2018. For clarity, the translated version of her complaint to the police is recorded as:
I am residing at the above address with my parents. On 2018.12.[day], between 07.15 — 07.30 p.m I heard someone knocks the door hard. I was watching television with my son. When I opened the door I saw two persons standing near the door covering their face with helmets. One was wearing a red color T- shirt and the other one was wearing a black color T- shirt. Both were wearing helmets covering their faces. The one who was wearing black colour Tshirt asked me "where is[Applicant’s name]?". [name]is my elder brother. I told him that he is not here. Then he asked me where is he? I said he is out of the country. Then the one who was wearing black colour T-shirt told "I will not let him go of earth" "I will kill him". Then they went off. In addition to both of them, I saw there were few others down the stair case. I spoke to my father, [name]and informed him about this. Father asked me to wait till him come home. Now my father has gone to Colombo. I could not wait, and therefore, I came to lodge a complaint. I do not know who the people who threaten my brother[the applicant].
The applicant claims that because of his past engagement with politics, the people who came looking for him threatened to kill him and he fears he will be killed by the members of the UNP party if he returned. He claims that their attendance upon the residence was politically motivated, however the Tribunal does not accept this to be supported by what his sister complained about.
When very carefully assessing the contents of his sister’s complaint, there is an absence of any reference to these people making any comments or threats which suggested that their visit to the house was politically motivated; and there is an absence of any reference by these people to any particular political point of view or ideology; and no reference was made to any politician, political party or any political philosophies. It is difficult to accept that if this event did occur as he has claimed that the applicant was specifically targeted because of any political profile or affiliation to a political party.
Every opportunity has been afforded to the applicant to personally call witnesses to give evidence and because the applicant’s sister was not called as a witness, the Tribunal is not in a position to canvass with her the veracity of the contents of the police complaint. Nor was there an opportunity to appraise the credibility of her as a witness. In that regard, the Tribunal attributes no weight to the contents of that document in respect to the applicant’s claim that he was targeted because of his political profile.
DOCUMENTARY EVIDENCE - DISCUSSION
Discussed above were the number of documents provided by the applicant and the reliance he placed upon them to support his claims for protection. The Applicant said that he asked his father to source the documents on his behalf prior to his application for a protection visa being lodged with the Department. The Tribunal has carefully examined and appraised the contents of each of those documents and in respect to the letter purportedly provided by[Mr A], it is dated 25 January 2019 and it says:
To Whom it may Concern
[The applicant]is a well known person to me. In fact, he was working for me from 2005 to 2010
I here by certify he is well disciplined, efficient, trust worthy employee. I wish him all the very best in future endeavoured
[Mr A] Minister of Parliment
Kandy District
It is noted by the Tribunal that a glary omission from the word Parliament is the letter “a”, and although it may be very unusual for a person carrying such an esteemed position within society as a parliamentarian would ordinarily make such a spelling error, the Tribunal is prepared to accept that errors are possible because the applicant’s name is also spelled incorrectly. However, although the letter supports the applicant’s evidence and claims in respect to the time period he was employed by the politician, the letter does not otherwise provide any other probative evidence towards the applicant’s claims.
So far as the affidavit of the applicant’s father, it merely goes towards pointing out that the applicant’s name is spelt incorrectly in the letter provided by[Mr A]. Noticeably, this affidavit was completed about two months after the applicant’s sister suggested that the men had visited the family home and threatened to harm the applicant. She suggested in her complaint to the police that she had contacted their father about what happened, yet when scrutinising the contents of the father’s affidavit, it is silent in respect to that alleged incident or any of the other claims raised by the applicant.
When assessing the letter from[Mr B] , the Tribunal does not accept that it provides any assistance towards the applicant’s claims. The document is dated 2 May 2017, which is well prior to the incidents the applicants claims to have occurred in 2018 which prompted him to leave Sri Lanka. The letter outlines:
2017.05.02
TO WHOM IT MAY CONCERN
I hereby verify that Mr. [the applicant]has been working with us from the period of year 2007 to 2017.
While working with us he demonstrated as a diligent and truthful person. His interpersonal skills are outstanding and he has been very helpful.
I wish him all the success in career in future.
It is noted that [Mr B]’s letter suggests that the applicant was working with “us” from 2007 to 2017. If that is so, then this period overlapped the time he was employed by [Mr A] and the [Company 1] in Colombo. The applicant could not explain why the letter was dated well prior to when he left Sri Lanka, although he did say that he used to travel back from Colombo to Kandy on his days off to undertake what he described as volunteer type work for the political party which [Mr B] belonged to.
The Tribunal is satisfied the contents of [Mr B]’s letter do not refer to the applicant working for him in any political capacity and no weight is attributed to the document in the assessment of the applicant’s claims.
CONCLUSION AND REFUGEE FINDINGS
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[28]
[28]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[29] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[30]
[29]Migration Act 1958 (Cth), s 5AAA.
[30]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
In recapping the applicant’s case, he claimed that he worked for[Mr A], who was a member of parliament representing the SLFP. The applicant says that he was also a supporter of that political party and he undertook campaign tasks such as filling out forms and participating in some door knocking activities and attending rallies. He claims that because of that association, he was later targeted by members of the opposing political party and he described four separate incidents whereby he was targeted. Two of those incidents took place when he was still in Sri Lanka, and the other two incidents took place when he was in Australia.
The first incident he claimed was what he described as a street clash between supporters from the SLFP party and the UNP. The UNP are the opposing political party. The Tribunal has already discussed in these Reasons the details regarding that incident at paragraph [27] and was satisfied that the street clash has to be seen for what it is and it was nothing more than two opposing sets of supporters involved in a melee.
The second incident is what the applicant has described as him being approached by two men on a motorcycle after he had just arrived in Kandy by bus. This incident has also been canvassed by the Tribunal in these Reasons in paragraphs [28] to [32]. Notwithstanding it being identified that his versions differ, the singular constant in the versions provided to the delegate and the Tribunal is that the men did not say anything to him, or call out his name in a way that suggested that the incident was politically motivated or he was targeted because of his association with a particular political party.
The applicant did not make a complaint to the police about this incident, and as his sister later showed, victims of crimes are not impeded in making a complaint with the police.
The Tribunal finds that there was no probative evidence arising from what the applicant told the Tribunal at the review hearing which validates any claim that he was specifically targeted and attacked because of any politically motivated cause. The Tribunal does not accept that the applicant was targeted within Sri Lanka because of any political profile he had.
In respect to the two remaining incidents, they are alleged to have taken place after the applicant had arrived in Australia. It is claimed that on two separate occasions, men visited the applicant’s family’s home in Kandy looking for the applicant. The Tribunal particularly notes that by the time that these incidents took place, it has been over eight years since the applicant relocated from Kandy to Colombo.
The applicant claimed that his sister telephoned him to say that two men, who pretended to be his friends, had arrived at the family home and were asking to speak to the applicant. As already explained in these Reasons at paragraphs [36] to [37], there appears to have been no suggestion that these people made any threats or indicated in any way that their presence at the house was connected to any politically motivated act. It is unknown who those people were, or if their intentions were anything other than looking for the applicant because they knew him.
The Tribunal notes that apart from telling the Tribunal at the review hearing about that incident, he had not previously mentioned it within his application for a protection visa and nor did he refer to the incident when he was being interviewed by the delegate. This is a new claim and section 423A of the Act provides that because this claim was not raised or presented before the primary decision was made by the delegate, then the Tribunal is to draw an unfavourable inference as to the credibility of that claim if the Tribunal is satisfied that he does not have a reasonable explanation why the claim was not raised earlier. No explanation was provided as to why this claim was not raised at an earlier occasion, and the Tribunal notes that the applicant relies upon a complaint his sister made to the police about a later incident, and his father has provided an affidavit which is dated 6 February 2019, yet there is no reference in either of those documents about this incident. Having carefully assessed the new claim along with the applicant’s testimony about it, the Tribunal does not accept that it is a credible claim.
The final claim made by the applicant refers to the complaint the applicant’s sister made to the police. When careful analysis and considering is applied to the contents of the police report outlined in paragraph [38], an important feature missing from the report to support the applicant’s claim is the nonexistence of any reference to the men seeking out the applicant because of his alleged involvement with the SLFP and [Mr A]. The Tribunal is not convinced that the evidence supports the applicant’s claims that these people wanted to harm him because of any political affiliation he previously had with [Mr A] and the SLFP and his claim is rejected.
DELAY
When carefully assessing the facts, features and circumstances of the applicant’s claims, the Tribunal recognises that a significant delay exists between when the applicant arrived in Australia to when he made his application for a protection visa.
He first arrived in Australia [in] June 2018 and his application for a protection visa was not made until 18 March 2019, which is a passing of nine months. The Tribunal finds that this period is a significant delay.
When the Tribunal is considering the significant delay of nine months between the applicant’s arrival in Australia to when he made his application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[31] and the Tribunal particularly notes that by the time his application was lodged with the Department, he had already been an unlawful non-citizen for three months.
[31] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
The Tribunal has very carefully considered that significant period of delay between the applicant’s arrival in Australia and when he made his application, and after carefully assessing all of the circumstances surrounding that delay, the Tribunal is satisfied that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Sri Lanka, and finds that the delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.
STATE PROTECTION
Available to the Tribunal is reliable and credible country information contained within the DFAT Country Information Report (‘DFAT report’), which provides that Sri Lanka has no laws or government policies that hinder access to state protection on the basis of religion or ethnicity. All citizens have access to avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka.
The Sri Lanka Police are responsible for enforcing criminal law and maintaining general law and order in the country and the police operate under the purview of the Ministry of Law and Order. The police force has a notional strength of around 85,000 members, and maintains an additional 8,100-member paramilitary Special Task Force. Like the military, most members of the Sri Lanka Police, including in Tamil-populated areas, are Sinhalese.
There is assistance available to victims of crimes within the Protection of Victims of Crime and Witnesses Act (2015) established the National Authority for Protection of Victims of Crime and Witnesses, and a Victims of Crime and Witnesses Assistance and Protection Division within the police.[32]
[32]The DFAT Country Information Report, Sri Lanka, 21 December 2021, page 44, paragraphs 5.1 to 5.5.
The Tribunal observes that the applicant claimed that after the purported incident involving the people on the motorcycle, he did not make a complaint to the police because he was scared. The country information outlines that the police have the responsibility of enforcing law and order, and there does not appear to be any impediment to a criminal complaint being made to the police. This is illustrated by the complaint made by the applicant’s sister in December 2018. A further demonstration of the protection provided by the police is that the authorities retain comprehensive countrywide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences.[33]
[33]The DFAT Country Information Report, Sri Lanka, 21 December 2021, page 46, paragraph 5.16.
When careful consideration if given the claims made by the applicant and an analysis of those claims is made against the country information contained within the DFAT report, the Tribunal finds that the Sri Lankan police and relevant authorities would not be hindered in their responsibilities of protecting the applicant.
FINDINGS
Having given very careful consideration to the evidence provided in this application, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, a real risk exists that he would suffer significant harm or there is a real chance that he would suffer serious harm.
Having regard to, and carefully considering all the evidence, in particular the facts as outlined above, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as defined in the Act.[34]
[34]Migration Act 1958 (Cth), s 36(2).

Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act, and Australia does not have protection obligations in relation to him.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[35] the Tribunal has considered the alternative criterion.[36] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Sri Lanka, there is a real risk that he will suffer significant harm as it is defined in the Act.[37]
[35]Migration Act 1958 (Cth), s 36(2)(a).
[36]Migration Act 1958 (Cth), s 36(2)(aa).
[37]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Sri Lanka. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[38]
[38]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Sri Lanka now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958 (Cth)
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.
…

[2023] AATA 4769

7 November 2023

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Immigration

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Statutory Construction

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