2218136 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of an individual from Sri Lanka. The applicant claimed to have left Sri Lanka due to persecution for being homosexual, alleging mistreatment by society and a lack of protection from authorities, including the police. The applicant also expressed fears of self-harm and serious harm from others if returned to Sri Lanka, stating that there was nowhere safe for him in the country.

The primary legal issue before the Tribunal was to assess the credibility of the applicant's claims and determine whether, on the accepted facts, the applicant met the criteria for a protection visa under the Migration Act 1958. This involved considering whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, specifically gay men, and whether such persecution would be systematic and discriminatory. The Tribunal also had regard to the complementary protection criterion, which applies if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, the applicant faces a real risk of suffering significant harm.

The Tribunal considered the applicant's statutory declaration detailing past experiences of mistreatment and fear, including being caught engaging in homosexual activity, facing ostracism, and experiencing physical harm and threats from a neighbour and a house owner. The Tribunal also took into account independent country information regarding Sri Lanka. Ultimately, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.