2219241 (Refugee)
[2024] ARTA 638
•14 November 2024
2219241 (Refugee) [2024] ARTA 638 (14 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs
Tribunal Number: 2219241
Tribunal:General Member S Nyabally
Date:14 November 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 14 November 2024 at 3:37pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – fear of harm from creditors of late father – borrowed to pay for applicant’s travel to Australia – applicant and mother warned and threatened – physical and mental health – charges of assault in Australia dismissed – community stigma – length of residence, financial situation and capacity to re-establish – religion – conversion to Christianity in Australia – country information – prevalence of Christianity and constitutional right to religious conversion, government’s actions against terrorist groups – credibility – inconsistent claims and evidence – passage of time and no recent contact by creditors – delay in applying for protection – applied after further student visa refused – misconduct by agent – request for referral for ministerial consideration not granted – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4)(c), 36(2)(a), (aa), (2A)(d), (e), 65, 351
Migration Regulations 1994 (Cth), Schedule 2CASES
AGA16 v MIBP [2018] FCA 628
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant first arrived in Australia on [date] August 2006 as the holder of a Student (Subclass 572) visa. He subsequently applied for and was granted 3 further student visas, the last of which expired on 30 September 2011.
On 4 October 2011 the applicant applied for a further student visa. A delegate refused the student visa application on 11 January 2012. The applicant applied for review of the delegate’s decision, which was affirmed by the (then) Migration Review Tribunal on 30 July 2013.
On 23 June 2015 the applicant applied for ministerial intervention. A delegate refused to refer the matter to the Minister on 29 April 2016.
On 26 May 2016 the applicant applied for the protection visa. A delegate refused the protection visa application on 23 December 2022. The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision on 30 December 2022. By operation of law, on 14 October 2024 that review application was taken to have been lodged with the Administrative Review Tribunal.[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 8 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant claims to be a [Age]-year-old Sri Lankan citizen who was born in Colombo, Sri Lanka. In his protection visa application form and accompanying statement, the applicant claimed that he feared returning to Sri Lanka because a group of people were seeking to enforce a debt owed by his deceased father, and had threatened to harm him if he did not repay the money owed to them.
The applicant claimed that his father passed away in August 2007. When the applicant travelled to Sri Lanka to attend his father’s funeral, he was approached by people who claimed that his father had owed them 3,500,000 Rs (around $38,000).[2] The people told the applicant that he should repay the money “as soon as possible”, took the applicant’s contact details and warned him that they had contacts in Australia and would easily be able to find him. After returning to Australia, the people began calling the applicant and asking him to repay the money. After several months they told him that the debt had accrued interest and was now up to 8,000,000 Rs (around $40,000). They had been threatening the applicant and his mother since 2010.
[2]
The applicant also raised claims in relation to his mental health. He stated that shortly after he arrived in Australia in 2006, he was falsely accused of [assaulting] a [person] (the alleged assault). The assault charges against the applicant were ultimately dismissed, but many people in the Sri Lankan community believed that he was guilty and made jokes about him. The applicant felt ostracised and depressed. His mental health suffered further after his father’s death and the subsequent threats from his father’s creditors, to the extent that he attempted to take his own life.
The applicant feared that if he returned to Sri Lanka, he would be killed by the people seeking payment of his father’s debt which he was unable to repay, and/or that he would be ostracised and alone because of the stigma associated with his court proceedings.
Protection visa application interview/Supporting documents
The applicant attended an interview with the Department on 1 March 2022. Following the interview, in a response to the delegate’s request for further information, the applicant provided further written statements and evidence including:
·A letter from his psychologist [Ms A] dated 22 August 2018, confirming that he had been attending counselling sessions from 11 March 2017 to 22 August 2018;
·A letter from [B] of [Organisation] dated 21 August 2018, confirming that the applicant had contributed to the service by volunteering;
·A character reference from the applicant’s mentor, [Mr C], dated 25 April 2018;
·An appreciation certificate from Volunteering Australia; and
·A participation certificate from [Church 1].
Delegate’s decision
The delegate refused to grant the visa, finding that the applicant had been unable to provide substantive or descriptive details of his claims or any supporting evidence, which would be expected given the amount of money he claimed to owe. The delegate rejected the applicant’s fears of harm from his father’s creditors as not credible, and on the basis that any difficulties he encountered on return to Sri Lanka would not be the result of any act or omission committed with the intention to harm him.
Before the Tribunal
On 30 December 2022, the applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record.
Pre-hearing submissions and evidence
The applicant provided the Tribunal with further evidence prior to the hearing, comprising:
·Copies of the 5 documents submitted to the Department after the 1 March 2022 interview;
·A letter from [Ms D], Refugee and Asylum Seeker Health Care Co-ordinator at [Organisation 2], dated 16 July 2024;
·A letter from the applicant’s doctor dated 7 November 2018, referring the applicant for ongoing counselling for his ‘recently fluctuating mood symptoms’;
·A letter from [Pastor E] of [Church 1] dated 27 August 2018;
·An additional attendance letter from his psychologist [Ms A], dated 11 April 2018;
·A reference from [Dr F] of [Organisation 2] dated 30 July 2024, confirming that the applicant is attending regular appointments for a number of medical conditions, and is currently experiencing ‘significant stress and anxiety with severe sleep disturbance’; and
·A character reference from [Ms G] of [Organisation 3], dated 22 July 2024.
The hearing
As noted above, the applicant appeared before the Tribunal on 8 August 2024 to give evidence and present arguments. The Tribunal also received a 1-page statement from the applicant’s mentor, [Mr C] (who did not give oral evidence).
At the hearing, the Tribunal asked the applicant if he had any concerns about his capacity to give evidence, noting the symptoms described by [Dr F] in her 30 July 2024 letter. The applicant replied that he felt like he could participate in the hearing.
In receiving and considering the evidence from the applicant, the Tribunal considered the Administrative Appeals Tribunal’s Guidelines on Vulnerable Persons.[3] In particular, the Tribunal invited the applicant to ask for a break at any time during the hearing and limited the questions asked of the applicant as much as possible. The applicant confirmed that he was comfortable proceeding with the hearing in the manner proposed by the Tribunal.
Post-hearing submissions and evidence
[3] While the Tribunal acknowledges that the Guidelines on Vulnerable Persons are no longer in force, it considers that this provides useful information about processes to be used to ensure that applicants are provided with a meaningful opportunity to present their case, make submissions and adduce evidence, as required by s 55(1) of the Administrative Review Tribunal Act 2024.
The applicant provided additional documents following the hearing, being:
·A statement from [Mr C] dated 27 August 2024; and
·An email from the applicant sent on 16 September 2024 with additional written submissions.
On 17 October 2024, the Tribunal wrote to the applicant to invite him to provide further information regarding aspects of his claims. The applicant responded by email on 4 November 2024.
Where relevant, the applicant’s oral and documentary evidence is discussed in the Tribunal’s findings and reasons below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) 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 is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has provided a copy of his Sri Lankan passport. He has consistently claimed to be from Sri Lanka. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.
The applicant’s personal background
The applicant gave evidence that he was born in Colombo and raised in [Town], a small town in the Gampaha District of Sri Lanka. His father worked for the [employer] but is now deceased, and his mother and [sisters] reside in Sri Lanka. The applicant is estranged from his family and has not spoken to his mother or sisters since his father’s funeral in 2007.
The applicant’s parents separated while the applicant was still young, and the applicant and his father went to live with his paternal grandparents.
After finishing high school in [Year], the applicant completed further studies in [subject 1] while working as [an occupation] in Sri Lanka. The applicant enrolled in a [subject 2] course in Australia as he believed it would benefit his career in Sri Lanka. He was granted his first student visa on [date] October 2006, arriving in Australia 3 days later.
The applicant has intermittently studied and worked over the time he has been in Australia. He has not worked since about 2013, since being informed by the Department that he did not have a visa with work rights.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
The applicant’s claims for protection arise from 3 primary sources: a debt owed by the applicant’s father; the impact a return to Sri Lanka would have on his mental and physical health and his capacity to subsist; and on the basis of his Christian religion.
Debt owed by father
In the Department interview, the applicant gave evidence that his father had borrowed about $40,000 to enable the applicant to study in Australia. The applicant claimed that his father had not told him about the loan, and that he only learned about the debt when he returned to Sri Lanka to attend his father’s funeral. While at the funeral the applicant was approached by several men who claimed to be his father’s friends from the [employer]. The men told the applicant that his father had borrowed money from them, and that the applicant was now responsible for paying them back. The applicant had never met the men before, but his sister’s husband confirmed that the applicant’s father had borrowed money from the men to pay for the applicant to go to Australia. The applicant’s brother-in-law and sister told him not to argue with the men as they were very powerful. The applicant realised that he could not fight with the men so told them that he would pay them back. The men told him that they would call him about the debt, and warned him that if he didn’t pay, that they had friends in Australia who could find him. The applicant claimed that after he returned to Australia the men would telephone him to demand that he repay the money, but that he had not heard from them since 2009 or 2010, when he changed his telephone number. The applicant was unsure whether the men continue to contact his family, as his mother, sister and brother-in-law cut off contact with him in 2010 because the men were threatening them.
In the Tribunal hearing, the applicant gave evidence that the one and only time he met his father’s debtors was at his father’s funeral. On that day, about 5 or 6 men wearing [employer] uniforms approached the applicant and told him that as his father borrowed money from them, it was his responsibility to settle the debt and interest. The men threatened him, telling him that if he didn’t settle the debt they would find out where he lived and harm him, and that there was no point in going to the police as they had very close police contacts. One of the men grabbed the applicant by the belt and told him ‘don’t mess with us’. The applicant did not know the men, but his village friends told him that they were his father’s friends and very powerful. The applicant agreed to repay the men within 3 months, but on his return to Australia he was too distracted by his court proceedings. Over the next 3 or 4 months the men called the applicant 3-4 times to demand repayment. After the applicant changed his telephone number he never heard from the men again. The applicant believed that his debt would now be over $60,000 because of the interest, but was uncertain of the exact amount as the terms of repayment were entirely up to his father’s debtors.
The Tribunal asked the applicant if the debtors had ever contacted his family. The applicant replied that he did not know as he had not spoken to his sisters since his father’s death in 2007. His sisters stopped speaking to him for 3 reasons: first, because they believed that the applicant had ‘wasted’ their father’s money in Australia, the stress of which caused his heart attack and death; secondly because they thought he was a person of bad character because of the alleged assault and associated criminal proceedings; and thirdly because they were scared that if they continued to connect with the applicant that their father’s debtors would come and trouble them.
The Tribunal asked the applicant why he believed that his father’s debtors would still be interested in him, given that 17 years had elapsed since his contact with them. The applicant acknowledged that some may already be dead, but stated that on the other hand, they may still be angry with him given the amount of money that they had loaned his father. The applicant further submitted that if he were to return to Sri Lanka he would be doing so with no money, and if his father’s debtors were to learn that he had returned and pursued him for the debt that there would be no way that he could repay it.
The Tribunal asked the applicant why he considered that any action taken by his father’s debtors would rise to the level of serious or significant harm, noting that his evidence was that he had been threatened but not harmed in the past. The applicant replied that his main concern was not that he would be harmed by the debtors. His concern was more to do with his financial situation if he returned to Sri Lanka. He would have no money and given his age he would find it difficult to find a suitable job or start a business. This stress, coupled with the issues arising from his father’s debt (discussed below), would grow so great that he may attempt to take his own life.
Impact of return to Sri Lanka
In the Department interview, the applicant gave evidence that he obtained a job as [an occupation] at a [workplace] shortly after arriving in Australia in 2006. It was while working at the [workplace] that the applicant was accused of the alleged assault. The applicant was charged in respect of the alleged assault, but the charges were eventually dismissed.
The applicant held a series of student visas from the date of his arrival in 2006 to 2011. In 2011, the applicant engaged the services of a migration agent, [Ms H] to apply for a further student visa. [Ms H] took the applicant’s documents and money, and advised him that she would lodge his visa application for him. The applicant did not hear anything from [Ms H], and his attempts to contact her were unsuccessful. It was not until much later that the applicant learned that [Ms H] was not registered as a migration agent, his student visa application was refused, a review of the refusal was affirmed, and he was an unlawful non-citizen. His subsequent applications for work rights have been refused. As he has been unable to work, the applicant has been reliant on friends and charities for his basic necessities.
The applicant claims to be suffering from chronic physical and mental health conditions, and feared that if he returned to Sri Lanka he would be unable to survive. In a submission to the Department, the applicant states that he is not “mentally okay” and expresses concern about his safety and capacity to subsist in Sri Lanka. The applicant observes that ‘Sri Lanka is not a safe place to live anymore because there is no electricity and food … there is a shortage of medicine as I see all the time on news’. In his September 2024 email the applicant states that:
I am now [Age] years old and have lived in Australia for nearly 18 years, spending the majority of my adult life here. During this time, I converted to Christianity, having been raised in a Buddhist family. The support I have received from Christian communities and churches in Australia has been a vital source of strength and well-being for me. If I were to return to Sri Lanka, where religious differences can lead to persecution, I fear that practicing my faith would be fraught with difficulty and danger. The loss of this spiritual and social support would be devastating.
Moreover, I have been managing diabetes, and I was recently hospitalized due to a serious health condition. I am deeply concerned that in Sri Lanka, I would not have access to the consistent medication and medical care required to manage my condition. Returning would severely compromise my health.
The emotional, financial, and spiritual support I receive in Australia is crucial to my survival. Without it, I face unbearable hardship, and possibly life-threatening consequences. The overwhelming stress, combined with the lack of support, has led me to experience suicidal thoughts. Nevertheless, I remain hopeful and determined to live a meaningful life and improve my circumstances.
In his November 2024 email, the applicant reiterated his claims to be suffering from severe distress and anxiety associated with the prospect of returning to Sri Lanka. The applicant still carried significant trauma from the alleged assault, which he claimed had ‘received widespread attention and went viral, impacting his reputation both here and in Sri Lanka’. The applicant submitted that the very thought of returning to Sri Lanka has significantly affected him and has led to ongoing thoughts of self-harm. He feared that if he returned to Sri Lanka, that he would be the subject of both stigma and renewed accusations.
[Mr C] has also provided a statement supporting the applicant’s request to remain in Australia. In his 24 August 2024 letter, [Mr C] submits that with no savings and no family support, the applicant would be unable to sustain himself. [Mr C] states that the applicant’s already precarious situation would be exacerbated by the people seeking to recover the debt, which would expose him to the risk of significant harm, and that the corrupt police in Sri Lanka would be unlikely to offer the applicant any protection.
Religion
At the Department interview, the delegate asked the applicant about his religion. The applicant claimed that he was raised as a Buddhist but converted to Christianity in Australia. His mother is Catholic but he is [Denomination 1], having been introduced to the religion by his (now ex) partner’s son in 2014. He reiterated this evidence at the Tribunal hearing.
In his September 2024 email, the applicant claimed for the first time that he feared returning to Sri Lanka because of his religion. The applicant stated that the support he had received from Christian communities and churches in Australia was ‘a vital source of strength and well-being for me’. The applicant feared that if he were to return to Sri Lanka his practice of Christianity would be ‘fraught with difficulty and danger’. First, he would suffer from the loss of the spiritual and social support provided by the Christian community in Australia; and secondly because in Sri Lanka religious differences could lead to persecution.
On 17 October 2024, the Tribunal wrote to the applicant to invite his comment on country information which appeared to be relevant to these claims. The Tribunal observed that the DFAT Report[4] states that around 7.4% of the Sri Lankan population are Christians. The right to religious conversion is enshrined in the constitution, which protects the freedom to adopt a religion of one’s choice, and Sri Lanka recognises religious holidays for Christians.[5] Christians live countrywide and larger Christian communities are located in the Western, Eastern, Northern and North Western provinces.[6]
[4] DFAT Country Information Report: Sri Lanka (2 May 2024) (DFAT Report).
[5] Ibid at [3.21], [3.23].
[6] Ibid at [3.40].
In assessing the chance of harm to Christians, the DFAT report records that the Sri Lankan government claimed to have ‘neutralised’ the groups responsible for the 2019 terrorist attacks against Christian churches in the Western and Eastern provinces of Sri Lanka.[7] Physical and verbal attacks against Christian pastors and their congregations have been reported, however these attacks predominantly target evangelical groups which are less established and actively proselytise.[8] DFAT assesses that Christians, particularly those belonging to non-evangelical, mainstream denominations (such as [Denomination 1]) face a low risk of official or societal discrimination, especially in urban areas. DFAT also assesses that notwithstanding the April 2019 Easter Sunday attacks, Christians face a low risk of violence from Muslims.[9]
[7] Ibid at [2.70].
[8] Ibid at [3.41]-[3.44].
[9] Ibid at [3.47].
In his response, the applicant reiterated that he would be harmed if he returned to Sri Lanka. He acknowledged that while he had not returned to Sri Lanka since 2009, submitted that ‘credible sources indicated that those who convert from Buddhism, especially former leaders within temples, often face considerable discrimination and targeted harassment’. The applicant submitted that as he was a prominent leader in his village temple, his conversion to Christianity would likely be seen as a betrayal, placing him at a high risk of harm.
FINDINGS
Credibility/Delay
The Tribunal has concerns about aspects of the applicant’s evidence of his debt in Sri Lanka. The applicant gave inconsistent accounts about the following issues:
·When his family stopped speaking to him. Before the Department, the applicant claimed that his family cut off contact with him in 2010; whereas before the Tribunal the applicant claimed that his family were not speaking to him at the time of his father’s funeral in 2007.
·His knowledge of his father’s debt. Before the Department, the applicant claimed that after the debtors spoke to him at his father’s funeral, his brother-in-law confirmed their identity and warned him that he shouldn’t argue with them and should do what they say. In contrast, at the Tribunal hearing the applicant claimed that his village friends had confirmed the debtor’s identity as his family were not speaking to him at the time.
·The threats received from his father’s debtors. In the statement accompanying his protection visa application, the applicant claimed that the debtors had harassed him and his mother “since 2010”. Before the Department, the applicant claimed that the last time he had heard from them was around 2009 or 2010. In contrast, at the Tribunal hearing the applicant claimed that the debtors had harassed him for 3 months after his return to Australia in 2007, but that he hadn’t heard from them after changing his phone and was unaware if they had attempted to contact his family as they no longer speak to him.
The Tribunal also has concerns about the delay between the date the applicant became aware of his father’s debt and the date he applied for the protection visa. At the hearing, the Tribunal raised with the applicant that in the intervening period, the applicant had lodged 2 student visa applications and a Ministerial Intervention request. It was not until after the Ministerial Intervention request was refused that the applicant applied for protection. The Tribunal explained that the delay of almost 8 years suggested that the applicant did not genuinely fear harm from his father’s debtors as claimed.
When the Tribunal discussed the above concerns with the applicant at the hearing, he explained that ‘everyone’ in the village knew about the debt and his father’s debtors, including his brother-in-law. The applicant asked his brother-in-law to help him at the funeral, but he did not for 2 reasons: because his family were not speaking to him after the alleged assault and because his brother-in-law was scared of being harmed by the debtors. The applicant claimed that the last contact he had with his family was in about 2009, but that he could not remember exact dates of events because at the time he was experiencing significant stress arising from his court proceedings, his visa issues, and the debt.
While the Tribunal retains doubts about the credibility of these claims, it acknowledges that the discrepancies in the applicant’s evidence may be attributable to the applicant’s mental health. The applicant’s medical records state that he suffers from significant stress and anxiety, which the Tribunal accepts may have impaired his capacity to accurately recall events accurately. The Tribunal has therefore afforded the applicant the benefit of the doubt and is prepared to accept that the key integers of the applicant’s claims are true.[10]
[10] See MIMA v Rajalingam (1999) 93 FCR 220
The Tribunal accepts that the applicant was raised as a Buddhist but converted to Christianity while in Australia. The Tribunal accepts that the applicant is a practising Christian. While the Tribunal has reservations about the lateness of his claim, it is also prepared to accept that the applicant held a leadership role in his local Buddhist temple in Sri Lanka.
The Tribunal accepts that the alleged assault and associated court proceedings occurred as claimed. The Tribunal also accepts that the charges against the applicant were ultimately dismissed with no finding of guilt. The Tribunal accepts that the applicant’s family cut off contact with him around 2009 or 2010, and that members of the Sri Lankan community may be aware of details of the alleged assault. However, in the absence of any specific examples or corroborating evidence, the Tribunal does not accept the applicant’s claim that his case received widespread attention or ‘went viral’. Even if it did accept that the alleged assault was well-known in Sri Lanka (which it does not), the Tribunal does not accept that the alleged assault would continue to receive widespread attention if he were to return to Sri Lanka now, more than a decade after the alleged assault and criminal proceedings.
The Tribunal accepts that the applicant enlisted the services of [Ms H] to help with his 2011 student visa application which was denied and an appeal from the delegate’s decision affirmed on review. The Tribunal accepts that the applicant was unaware of the visa refusal and unsuccessful review until much later, because of [Ms H]’s conduct. The Tribunal accepts that the applicant has been unable to work since about 2013, and over this time has been reliant on the assistance of friends and charities.
The Tribunal accepts that in 2007, when attending his father’s funeral, the applicant was approached by several men who claimed that they were friends of his father and that his father owed them money. The Tribunal accepts that the applicant agreed to repay them in instalments when he returned to Australia but did not do so. The Tribunal accepts that for 3 or 4 months after his 2007 return to Australia, the men called the applicant 3-4 times to demand repayment. The Tribunal accepts that after changing his telephone number, the applicant never heard from the men again.
The Tribunal accepts that the applicant fears returning to Sri Lanka, on the basis of his past experiences in Sri Lanka, the stigma associated with the alleged assault, and the amount of time he has spent outside of the country. The Tribunal also accepts that the applicant suffers from physical ailments including diabetes, and mental health ailments including significant stress and anxiety with severe sleep disturbance. The Tribunal accepts that the applicant may require ongoing treatment for his physical and mental health conditions, which may not be as readily available (or available at all) in Sri Lanka.
Does the applicant satisfy the refugee criterion for protection?
In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the chance or risk of harm to the applicant in the reasonably foreseeable future. This assessment is a forward-looking test.
The criterion in s 5J(1)(a) contains a subjective requirement (that an applicant must in fact hold a fear of being persecuted), while s 5J(1)(b) imposes an objective standard (that there be a real chance the person would be persecuted). A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]
[11] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
The Tribunal accepts that the applicant is genuinely concerned about his wellbeing if he is required to return to Sri Lanka. Accordingly, the question to be determined is whether there is a real chance that if he were required to return to Sri Lanka, that the applicant will be persecuted for one or more of the reasons specified in s 5J(1)(a).
In this case, the applicant has claimed to fear harm on several interrelated bases: first, because of the debt owed by his father; secondly, in relation to his capacity to re-establish himself in Sri Lanka given his age, the time he has spent living in Australia, his physical and mental health, lack of previous employment or savings, and/or the stigma associated with the alleged assault; and thirdly on the basis of his Christianity.
Each of these claims are considered below.
Debt owed by father
As noted above, the Tribunal accepts that the applicant was asked to repay a debt owed to his father’s friends but did not do so. However, in the absence of any corroborating evidence of the debt, the Tribunal does not accept that the applicant’s father owed 3,500,000 Rs to his friends in Sri Lanka. If the quantum of the debt was as significant as he claimed, and his father’s friends were powerful and well-connected in Australia, the Tribunal does not consider it plausible that they would only have contacted him 3-4 times to demand repayment then ceased pursuing the debt when the applicant changed his telephone number. The Tribunal considers it more likely that the debt was for a significantly lower sum, or alternatively has been repaid in full over the intervening 17 years, either by the applicant (when he had the capacity to work) or his family in Sri Lanka. In either scenario, the Tribunal does not accept that the applicant’s father’s debtors have any ongoing interest in the applicant or in pursuing the debt. This conclusion is underscored by the applicant’s lack of subjective fear of the debtors – he told the Tribunal that his main concern was not that he would be harmed by the debtors but had more to do with his financial situation if he returned to Sri Lanka.
The Tribunal has considered [Mr C]’s written statements concerning the applicant’s fear of harm arising from the debt. The Tribunal accepts that [Mr C] is a credible witness, but as [Mr C] has no firsthand knowledge of the circumstances surrounding the debt the Tribunal places no corroborative weight on his evidence.
As the Tribunal does not accept that the applicant’s father’s debtors have an ongoing interest in recovering the debt from the applicant, the Tribunal also does not accept that these debtors have any ongoing interest in the applicant or his family, or that they would seek to harm or threaten the applicant and/or his family if he returned to Sri Lanka, now or in the reasonably foreseeable future.
Accordingly, the Tribunal does not accept that the applicant faces a real chance of serious harm arising from his father’s debtors, now or in the reasonably foreseeable future.
Impact of return to Sri Lanka
The Tribunal has accepted that the applicant suffers from ongoing physical and mental health ailments which may require ongoing treatment, and that those treatments may not be available in Sri Lanka. The Tribunal also accepts that if he were required to return to Sri Lanka, he would be doing so as a middle-aged man who has spent almost 20 years living in Australia, who suffers from poor physical and psychological health, and who has no savings, no family support (due to his estrangement from his immediate family) and no recent history of employment.
The Tribunal accepts that the applicant may experience difficulties when re-establishing himself in Sri Lanka, including in finding accommodation, employment and adequate healthcare. The Tribunal empathises with the applicant’s situation, which was caused in part by the misconduct of his former agent [Ms H] and the deleterious impact this had on his student visa application and his right to work in Australia. However, as was discussed with the applicant at the hearing, the Tribunal considers that the economic and social conditions prevailing in Sri Lanka are experienced by all Sri Lankans, and does not accept that any difficulties he may experience are the result of discriminatory actions or omissions directed towards him for one or more of the reasons in s 5J(1)(a) of the Act: cf s 5J(4)(c). Differently put, the Tribunal does not accept that the applicant will be denied accommodation, employment and/or healthcare because of his race, religion, nationality, membership of a particular social group or political opinion. Accordingly, the Tribunal does not accept that the harm the applicant fears as a result of his age, the time he has spent living in Australia, his physical and/or mental health and/or his lack of previous employment or savings are the result of systematic and discriminatory conduct inflicted for one or more of the 5 reasons enumerated in s 5J(1) of the Act.
The Tribunal has also considered the likelihood of harm to the applicant on the basis of the alleged assault and associated criminal proceedings, but has no information before it to suggest that the applicant would encounter any official or societal harm on the basis of any overseas offences.[12]
[12] See for example COISS, ‘Sri Lankan Tamil convicted of murder in Australia’ (11 May 2018), CI180430111955641.
The Tribunal does not accept that the alleged assault and criminal proceedings ‘went viral’, or that the Sri Lankan community will have ongoing interest in these historical events now or in the reasonably foreseeable future. The Tribunal accepts that despite the time that has elapsed, some members of the applicant’s local community may be aware of the alleged assault and associated criminal proceedings, and that he may encounter some social stigma as a result. The Tribunal accepts that this social stigma may be upsetting for the applicant and may disproportionately affect him, given his poor physical and psychological health. However, even when having regard to the applicant’s particular vulnerabilities,[13] the Tribunal does not accept that the impact of the social stigma would be of such a severity as to constitute serious harm, having regard to the non-exhaustive examples contained in s 5J(5) of the Act.
[13] AGA16 v MIBP [2018] FCA 628.
As such, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant on the basis of his age, the time he has spent living in Australia, his physical and/or mental health, lack of previous employment or savings and/or the stigma associated with the alleged assault, now or in the reasonably foreseeable future.
Religion
The Tribunal has accepted that the applicant is a practising Christian, having converted to Christianity in Australia in about 2014. The Tribunal has also accepted that prior to his conversion, the applicant was a practising Buddhist, and is prepared to accept that he held a leadership role in his village temple.
The applicant has submitted that ‘credible sources’ indicate that converts from Buddhism, particularly former leaders in temples, face considerable discrimination and harassment. However, he has provided no evidence to support this submission. In the absence of such evidence, the Tribunal prefers the country information cited at [48] - [49] above. The Tribunal places particular weight on the fact that the applicant’s conversion to Buddhism is legally permitted pursuant to the Sri Lankan constitution, and DFAT’s reports of larger Christian communities being located in the Western province of Sri Lanka (where the applicant’s hometown is located), and assessment that Christians belonging to non-evangelical, mainstream denominations face a low risk of official or societal discrimination. The Tribunal considers DFAT’s assessment risk to be applicable to the applicant’s circumstances, notwithstanding his status as a former leader in his Buddhist temple who will be returning to a rural area of Sri Lanka. While DFAT assesses that the risk of discrimination is ‘particularly’ low for Christians from urban areas, it does not suggest (nor is there any information before the Tribunal to indicate) that Christian converts and/or Christians in rural areas have an elevated profile. Accordingly, on the basis of this country information, the Tribunal does not accept that the applicant faces a real chance of serious harm on the basis of his Christian faith, his conversion to Christianity and/or his status as a former Buddhist and/or temple leader, now or in the reasonably foreseeable future.
Conclusion on refugee criterion
Having considered the evidence as a whole, the Tribunal does not accept that there is a real chance that the applicant will face serious harm on the bases of his father’s debt, his age, the time he has spent living in Australia, his physical and/or mental health, lack of previous employment or savings, the stigma associated with the alleged assault and/or his religion, now or in the reasonably foreseeable future.
Considering the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as required for the purposes of the definition of a ‘refugee’ contained in s 5H(1) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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).
Debt owed by father, religion
The Tribunal has found that the applicant does not face a real chance of harm on the basis of his father’s debt, his Christian faith, his conversion to Christianity and/or his status as a former Buddhist and/or temple leader. It is noted that in Minister for Immigration and Citizenship v SZQRB,[14] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well‑founded fear’ in relation to the ‘refugee’ criterion.[15] Accordingly, for the same reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk he will suffer significant harm on these bases.
Impact of return to Sri Lanka
[14] [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) (SZQRB).
[15] SZQRB per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The Tribunal has accepted that the applicant may experience difficulties when re-establishing himself in Sri Lanka, including in finding accommodation, employment and access to adequate healthcare for his physical and psychological needs. However, the Tribunal does not accept that any harm he might suffer in Sri Lanka as a result of these issues would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor is it suggested that the death penalty will be carried out on him.
Australian courts have held that complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person (GLD18 v MHA [2020] FCAFC 2 at [37]). Accordingly, the Tribunal finds that any hardship the applicant might experience in obtaining employment, accommodation or access to health and/or social services on the basis of his age, the time he has spent living in Australia, his physical and/or mental health, lack of previous employment or savings would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person with the intention of causing him to suffer significant harm.
Stigma from alleged assault
The Tribunal has accepted that if he is required to return to Sri Lanka, that members of the applicant’s local community may be aware of the alleged assault and associated criminal proceedings. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are 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. ‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
The Tribunal accepts that the applicant may encounter some social stigma as a result of the alleged assault and associated criminal proceedings, but in the absence of any corroborative country information does not accept that he will encounter any official or societal harm on the basis of any overseas offences.[16]
[16] See for example COISS, above n 5.
The Tribunal accepts that the social stigma the applicant may encounter as a result of the alleged assault and associated criminal proceedings will undoubtedly be upsetting for him, but does not accept that it will result in ‘significant harm’ for the purposes of the complementary protection criterion, having regard to the exhaustive instances of significant harm contained in s 36(2A) of the Act. There is no evidence to suggest that the applicant will be arbitrarily deprived of his life, tortured or subjected to the death penalty. The Tribunal does not accept that the social stigma the applicant may experience would be of such a severity as to constitute cruel or inhuman or degrading treatment or punishment as defined in ss 5(1) and 36(2A)(d)–(e) of the Act, even when taking the applicant’s physical and psychological vulnerabilities.[17]
Conclusion on complementary protection criterion
[17] AGA16 v MIBP [2018] FCA 628.
Considering the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real risk that he will face significant harm (as defined in s 36(2A) of the Act) on the bases of his father’s debt, his age, the time he has spent living in Australia, his physical and/or mental health, lack of previous employment or savings, the stigma associated with the alleged assault and/or his religion, now or in the reasonably foreseeable future.
Ministerial intervention
In his November 2024 email, the applicant has requested that the Tribunal consider referring his case to the Minister for his consideration of the use of his discretionary powers under s 351, as set out in the Department’s Policy Advice Manual, ‘Minister’s guidelines on ministerial powers (sections 351, 417, and 501J)’. Among other things, those guidelines set out that cases that have one or more unique or exceptional circumstances may be referred to the Minister for consideration, including:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person; and
·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.[18]
[18] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) at [4].
The information before the Tribunal raises 3 matters which may be relevant to the above circumstances, being: the conduct of [Ms H], which gave rise to the refusal of the applicant’s student visa and subsequent unlawfulness; the applicant’s current physical and psychological health; and the effect of the applicant’s departure on [Mr C] (an Australian citizen) and his business. In respect of this latter point, [Mr C]’s August 2024 letter states that:
The irony is that if he was granted a visa that allowed him to work, he would be a productive member of the Australian community, paying tax and not on a benefit and could attempt to pay back [his father’s] debt.
Are we not crying out for workers, and I know this for a fact in my [industry] all companies are short of [workers]. I would train him to [do a job task] where full-time employment would be assured, along with a much better life than he has had for the last 18 years while living in Australia.
There is insufficient information before the Tribunal to adequately assess how [Ms H]’s actions affected the applicant’s student visa application and review, or the probable impact of a return to Sri Lanka on his physical and psychological health. Nor is there sufficient information to establish why [Mr C]’s inability to employ the applicant would result in serious, ongoing and irreversible harm to him. The Tribunal has decided against referring this matter to the Minister, noting this does not prevent the applicant from seeking the Minister’s intervention directly and providing further information if he wishes to do so. In either case, the current Minister’s guidelines require a referral to first be assessed by the Department, irrespective of whether they were referred to the Minister by the Tribunal or not.[19]
[19] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) at [8].
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 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 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
General Member S Nyabally
Representative: N/A
Date of hearing: 8 August 2024
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.
…
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