2216176 (Refugee)

2216176 (Refugee) [2024] AATA 3557 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Sastha Ariyasinghe (MARN: 0640268)
CASE NUMBER: 2216176

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Michael Simmons
DATE:19 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2024 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – New Zealand citizen partner and family residing in Australia – period of unlawful residence – accommodation – employment – rejection by family – possible self-harm – Australian citizen children – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
CSV15 v MIBP [2018] FCA 699
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 12 July 2019.
The applicant appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The applicant was represented in relation to the review, however Mr Sastha Ariyasinghe did not attend the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention,[1] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b).[2]
[1] MIAC v SZQRB (2013) 210 FCR 505.
[2] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Caseload Legacy) Bill 2014 (Cth).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant claims he is a citizen of Sri Lanka and he provided a copy of his Sri Lankan passport with his visa application. I accept that the applicant is who he claims to be, and that he is a national of Sri Lanka. Sri Lanka is the receiving country for the purpose of this assessment.
The applicant claims he is the partner of a New Zealand citizen who resides in Australia, and that the couple have [number] children together who were all born in Australia. Provided to the Tribunal were birth certificates for their children, a statutory declaration from the applicant, his partner and his partner’s mother which the applicant told me his lawyer prepared, as well as bank statements for an account held by both the applicant and his partner.
In the visa application and during the hearing the applicant detailed how he initially came to Australia on a student visa in June 2016. While studying at university in Perth he met his now partner. The applicant stopped studying and the pair moved to Sydney in February 2018. His student visa was cancelled in April 2019 and he was later detained for a week in June 2019 for being unlawful. He applied for a Subclass 461 New Zealand Citizen (family relationship) temporary visa, but this applicant was finalised as invalid. He then submitted his application for a protection visa on 12 July 2019. Aspects of the applicant’s claimed migration history are supported by details set out in the delegate’s decision.
I accept the applicant’s claims in respect of his family composition and his visa history in Australia.
Protection Claims
Visa application
The claims for protection presented in the visa application can be summarised as follows
In mid-2018 his partner, whom he met in Australia, fell pregnant. Due to health complications, she was hospitalised and in a coma for [number] days. The applicant’s first child was born on [date].
On 5 April 2019, his student visa was cancelled. After a period of detention and an invalid application for another visa, the applicant submitted an application for a protection visa.
When the protection application was submitted his partner was [pregnant]. The applicant was unable to secure ongoing employment as his visa had no work rights. The family have been struggling financially since then.
The applicant’s parents in Sri Lanka have stopped talking to him as he “break the culture back in Sri Lanka”.
The applicant is unable to return to Sri Lanka because his partner and son rely on him in Australia. If he was to return to Sri Lanka he would have nowhere to live and suffer mentally.
The applicant is unable to return to Sri Lanka because it will be hard to find a job that earns good money and the only person he really talks to in Sri Lanka is his sister.
Tribunal hearing
The applicant spoke at length and in detail about his family and his experiences in Australia. He indicated that he wanted someone to listen to his story and help him to find a way to stay with his children. He indicated that the reason he applied for a protection visa was because he felt he had no other option to remain in Australia with his children. He also told me that he previously knew a friend from work who had applied for a refugee visa when they had no other option to remain in Australia.
I explained to him that the Tribunal was reviewing the decision to affirm his protection visa application, and that my role was to consider whether he met either the refugee or complementary protection criteria. I explained those criteria to the applicant and he indicated that he understood them.
The applicant expressed frustration and remorse at the consequences that have flowed from the cancellation of his student visa in 2019 and stressed that he wants to stay in Australia with his children. I explained that my decision was not about whether he should be permitted to remain with his children, but only whether he faces a real chance or risk of harm were he to return to Sri Lanka. I noted that it is a matter for the applicant himself to explore whether he may have any alternate visa options available to him given his ties to Australia, and that such matters could be explored with a reputable migration professional.
I asked the applicant if he believes he meets either the refugee or complementary protection criteria, and he indicated that he does not. I asked if he believes anyone will seek to harm him in the future in Sri Lanka were he to return there. He stated that no one will harm him. I confirmed that a protection visa is intended to prevent the return of someone to a country where they face a risk or chance of harm, and is not focussed on the reasons someone wishes to remain in Australia. The applicant indicated that he understood.
I noted that in the review application submitted to the Tribunal, the applicant’s representative stated: “He also believes that the officer has not considered the section 36(2A) (a) of the Act - " the non-citizen will be arbitrarily deprived of his or her life". I asked the applicant if he fears he could be arbitrarily deprived of his life in the future in Sri Lanka. He confirmed that he does not.
He then mentioned that if there is any risk of harm in Sri Lanka it will be from himself. The applicant told me he does not have any history of self harm to date and that he has not consulted any mental health practitioners in relation to any concerns about his mental well-being. He said he new he would become stressed if he were separated from his children. I emphasised that if he felt concerned he may be at risk of harming himself there are various avenues for assistance available to him, including the phone numbers for Lifeline and Beyond Blue which were emailed to him by the delegate following his interview. He indicated he was aware of these.
I explained that the refugee and complementary protection criteria both consider possible harm resulting from the conduct of another person, but do not encompass self-harm.[3] The applicant indicated that he understood.
[3] CSV15 v MIBP [2018] FCA 699 [30]-[31] the requirement that the persecution involve systematic and discriminatory conduct means that s 36(2)(a) is concerned with persecution of an applicant by other persons for Convention (or nexus) reasons; GLD18 v MHA [2020] FCAFC 2 [37] he language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person.
I asked the applicant what he meant in his visa application by referring to breaking the culture in Sri Lanka. He suggested that he become a father very young, his first child was born when he was [age]. He indicated that most people in Sri Lanka wait until they are 30 or 35 and married to have children, though neither the applicant or his representative has submitted evidence to corroborate this.
He indicated that his father was angry with him becoming a father. I noted that the applicant had initially suggested that his father may kill him, but then suggested he did not mean this literally. The applicant agreed with this. He told me that his father is now too old to do anything to him. His father is upset and angry with him for the choices he has made in Australia, though they continue to have some limited contact, and he does not now fear his father would harm him were he to return to Sri Lanka.
The applicant mentioned having no one in Sri Lanka if he were to return there. He told me that he does not speak with his father often. But also indicated that he remains in touch with his mother and his sister in Sri Lanka. He suggested that his mother has been more forgiving and understanding towards him and that as a mother she will always support her son.
The applicant told me that being in Australia without permission to work for a number of years has caused serious financial strain for his family. He mentioned that from time to time he has engaged in casual informal work, and that sometimes he [does certain work]. He also told me that he has had some success [doing other things].
I noted that the statutory declaration sworn by the applicant states: “I believe the AAT hearing is on law plus merit review and I believe I will have fair hearing under compelling and compassionate grounds” and “I request the honorable member to pay his or her attention to the best interest of children and compelling and compassionate grounds on my circumstances”. I noted that these contentions did not appear to engage with any of the criteria applicable to the protection visa that is subject of this review. The applicant told me that his representative prepared the statutory declaration before the Tribunal. The applicant’s representative did not attend the hearing. I and invited the applicant to comment on or explain these submissions. He replied that maybe the representative did not provide the information the Tribunal wants, the representative did not take on the case due to being interested in it, he is a friend of a friend and the applicant could not afford to go to anyone else or seek advise elsewhere.
Consideration
During the hearing I explained that the central issues I needed to determine was whether the applicant met the refugee or complementary protection criteria. I invited the applicant a number of times to provide any relevant information that indicated he faces a risk or chance of harm in Sri Lanka. The applicant told me that he does not fear being harmed in the future in Sri Lanka by another person for any reason. He indicated he does not believe that he meets either the refugee or complementary protection criteria. I appreciated the applicant’s candour during the hearing.
The applicant spoke to me about his preference to remain in Australia with his children, and the circumstances surrounding his decision to apply for a protection visa in an effort to remain with them. I explained that information did not appear to relate to whether he faces a real chance of serious harm or a real risk of significant harm were he to return to Sri Lanka, and he agreed.
Were the applicant to return to Sri Lanka in the foreseeable future, I do not accept that he would be alone and without support. He maintains a relationship with his family in Sri Lanka. While I accept that he has poor rapport with his father, I note his evidence that he does not fear he may harm him. I also note he told me that he continues to have good communication with his mother and his sister.
The applicant’s evidence indicates that during challenging times in Australia he has demonstrated resourcefulness in finding ways to generate an income, including online. I am not satisfied that were he to return to Sri Lanka he would be unable to support himself financially to meet his basic needs.
On the available material, I am not satisfied the applicant faces a real chance of any harm for any reason in Sri Lanka in the foreseeable future. The applicant does not have a well-founded fear of persecution per s 5J(1), and therefore does not meet the definition of refugee per s 5H.
A ‘real risk’ and ‘real chance’ involve the same standard.[4] For the reasons set out above the applicant also does not face a real risk of any harm, including treatment amounting to significant harm, in Sri Lanka in the reasonably foreseeable future. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
[4] MIAC v SZQRB (2013) 210 FCR 505.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion or supporting material to indicate that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Simmons
Member

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

[2024] AATA 3557

19 July 2024

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