2313648 (Refugee)

2313648 (Refugee) [2023] AATA 4770 (14 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas
CASE NUMBER:  2313648
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:  Member Nathan Goetz
DATE:  14 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision of the delegate dated 29 August 2023 refusing to grant the applicant a protection visa and remits the visa application back to the delegate for reconsideration with a direction that the applicant satisfies s 36(2)(aa) of the Migration Act 1958 (Cth).

Statement made on 14 November 2023 at 4:06pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – anti-government protester – interrogated and repeatedly sexually assaulted by police – failed asylum seeker – access to mental health support – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 172, 189, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958
(Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant was represented in the review by an Australian legal practitioner.

BACKGROUND

On [date] May 2023 the applicant arrived in Australia by airplane undocumented. On [date] May 2023 he was refused immigration clearance under s 172 of the Act and placed into immigration detention under s 189(1) of the Act.
On 19 May 2023 the applicant applied for the protection visa. He participated in an interview with the delegate on 9 July 2023. On 29 August 2023 the delegate refused to grant the applicant the protection visa because the delegate was not satisfied that the applicant met either s 36(2)(a) or (aa) of the Act.
On 4 September 2023 the applicant applied to the Tribunal for merits review of the decision.
On 13 October 2023 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal hearing occurred via MS Teams, which the Tribunal was satisfied was appropriate in all the circumstances of the review as the applicant was detained in an immigration detention centre. However, on the day of the Tribunal hearing, the MS Teams link was not satisfactory and despite many attempts to improve the link, the Tribunal determined that the best course was to postpone the Tribunal hearing until 2 November 2023 and arrange for the applicant to appear in person at the Melbourne Registry.
On 2 November 2023 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal hearing was conducted with the assistance of an interpreter in the English and Tamil (Sri Lankan) languages. The applicant’s representative attended both Tribunal hearings via remote means.

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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

CONSIDERATION OF CLAIMS AND EVIDNCE

The Tribunal considered all the material contained on the Department file, the Tribunal file, and the oral evidence given by the applicant at both the delegate interview and the Tribunal hearing.
At the Tribunal hearing, the applicant was advised that the Tribunal was not bound by any finding of fact made by the delegate. The Tribunal confirmed with the applicant that he had no further protection claims that he had not previously raised.

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.
The most recent DFAT Country Information Report on Sri Lanka is dated 23 December 2021. The Tribunal has considered its contents.

Protection claims

At the Tribunal hearing, the Tribunal advised the applicant that it required the applicant to particularise his protection claims and that any protection claim not particularised would be treated by the Tribunal as not being advanced, or a concession that the applicant did not meet the requirements for a protection visa based on claims that were not particularised.
In a submission dated 27 October 2023, the representative provided a particularised set of claims, raising that the applicant feared harm in Sri Lanka for the following reasons:
·A Tamil male who is known to the Sri Lankan authorities as participating in protests the Sri Lankan government and someone who has been presented on media channels, leading the protests against the Sri Lankan government
·Being told by officers of the CID (Criminal Investigations Department) that if he did not oblige with their sexual requests, he would be charged with participating in events against the Sri Lankan government
·Evading the Sri Lankan authorities and departing Sri Lanka
·An actual and imputed political opinion against the Sri Lankan government
·Returning to Sri Lankan as a failed asylum seeker on a temporary travel document
·Not being able to access the mental health support he requires in Sri Lanka.

Identity, family, residence, employment and country of reference

In the protection visa application form, the applicant identified that he was born on [date] in Killinochchi, Northern Province, Sri Lanka. He identified as a Tamil.
He initially provided a photograph of what appeared to be a handwritten document that the applicant identified as his birth certificate in a language other than English. The applicant later provided to the delegate an English translation of the document which detailed that the applicant was born on the date he claimed and that his place of birth was a private hospital in [village]. The birth certificate identified the applicant’s mother and father, as well as a grandfather. The applicant also provided a copy of a Sri Lankan national identity card with an accompanying English translation.
In the protection visa application form, the applicant declared that he is a citizen of Sri Lanka, that he does not hold citizenship of any other country and does not possess the right to enter and reside in any other country.
In the protection visa application form the applicant detailed that he is married to [name], who resides in Sri Lanka, and that he has several siblings, which he detailed as:
·     [Name], who lives in Sri Lanka
·     [Name], who lives in Australia
·     [Name], who lives in Sri Lanka
The applicant declared that he was self-employed as a [Occupation 1] from January 2015 until April 2023.
From [birth] until [May] 2023 the applicant lived in [Address 1], Kilinochchi, Northern province, Sri Lanka.

Member of the same family unit

In the protection visa application form, the applicant declared that there were no members of the same family unit included in the protection visa application. He indicated he was raising his own claims for protection.
At the Tribunal hearing, the applicant conceded that he did not meet the requirements for the grant of the protection visa based on membership of the same family unit per s 36(2)(b) or
(c) of the Act.

Past experiences of harm in Sri Lanka

In the protection visa application form, the applicant declared that he was an active member of a [union] and took part in protests the Sri Lankan Government’s blocking of necessities and the rising costs of living. He wrote that he was responsible for organising rallies and protests, which resulted in him being investigated and questioned by the CID. It was claimed that the applicant appeared on Sri Lankan television where he gave an interview about a protest [in] 2022. The applicant provided a recording of that interview. He identified that he was the person wearing [specified clothing].
The applicant claimed that approximately a month after that protest, CID officers came to his family home and took him to a camp where he was interrogated. It was suggested that he had organised the protests. The applicant wrote that he was beaten during that interrogation. He claimed that he was kept overnight and after some time the CID officers became drunk and sexually assaulted him, including subjecting him to oral rape. He was released the following day and was told that he needed to report to the CID officers when called upon.
The applicant rote that there were many occasions when he had to return to the camp and was made to perform cleaning tasks, and that whenever the CID officers consumed alcohol, he would be subjected to sexual assaults and rape. He estimated that this occurred on at least 40 different occasions. He was threatened that if he reported this to anyone, he would be shot. The applicant wrote that if he ever attempted to refuse to attend upon the CID officers, he would be threatened with charges of participating in activities against the Sri Lankan government, and he would be jailed. It was for this reason that he went whenever he was called by the CID officers.
The applicant wrote that it was in March 2023, that the applicant was again taken to the camp and subjected to oral rape and made to perform sexual acts. It was from this time that the applicant decided that he needed to leave Sri Lanka.
At the delegate interview, the applicant told the delegate that it was during March 2023 that the CID officers told him that the CID officers threatened the applicant that they could ‘take him to the fourth floor’ which is a euphemism in Sri Lank for being tortured. The applicant told the delegate that this torture would involve nail pulling and being injected with substances to induce paralysis. It was this threat that made the applicant determined to leave Sri Lanka.
At both the delegate interview, and the Tribunal hearing, the fact that this threat was not contained in the written statement accompanying the protection visa application was raised with the applicant for comment, on the basis that it may suggest that the applicant’s claims were not true. The applicant told the delegate that he was uncertain why this was not included in the written statement, and repeated that explanation to the Tribunal.
In the protection visa application form, the applicant provided one residential address for the time he lived in Sri Lanka, being [Address 1], Killinochchi, Northern Province, Sri Lanka between [year] and [May] 2023, and did not claim to have relocated within Sri Lanka to seek safety after experiencing harm in Sri Lanka. The applicant did not detail why he did not relocate to another part of Sri Lanka in his protection visa application form, but did express why he thought relocation if he returned to Sri Lanka was not a viable option for him. At the Tribunal hearing, the Tribunal explored why the applicant did not go and live somewhere else in Sri Lanka, because the applicants continued presence at the same residential address may have suggested that he had not experienced the harm he claimed to have experienced, as it would be reasonable to expect that he would have fled to avoid the constant requirement to attend on the CID where he was subjected to sexual and physical assaults, and rape, if those claims were true. The applicant disputed that this was the case and suggested that he was told to report and if he failed to go do, the CID would find him and not let him go. The applicant also suggested that if he left the family home and lived elsewhere, people would find out what happened to the applicant which would bring shame. It was for similar reasons that the applicant did not move into the same home as his wife whom he married in October 2022.
Concerning why he did not report the abuse he had suffered by the CID officers to other authorities, the applicant wrote in his written statement that he did not do so because he was told that he would be shot if he did. The applicant’s written statement about lack of protection by the authorities is predicated on the fact that it was the authorities who harmed him in the first place.
To corroborate the applicant’s claimed experiences of harm in Sri Lanka, the Tribunal was provided with a Health Assessment Summary Report dated 19 October 2023 from [Organisation 1]. The report was completed by a counsellor with that service who noted that the applicant was referred to the [Organisation 2] by an IHMS Clinical Counsellor on 7 June 2023 due to symptoms of excessive rumination around trauma-related content, symptoms of over-arousal and anxiety, sleep disturbances and headaches and depression related symptoms. The applicant had, at the time of the report, participated in five counselling sessions. The report noted the applicant was currently prescribed medication from a psychiatrist. Relevant to the applicant’s past experiences, the report detailed that the applicant that the applicant had clinical attributes associated with posttraumatic stress.

Leaving Sir Lanka and arrival in Australia

In the protection visa application form, the applicant declared that he departed Sri Lanka from Colombo in May 2023 and departed that country legally. In his written statement, he detailed that his father facilitated his departure from Sri Lanka and that the applicant was required to send a copy of his passport and a photo of himself to an individual in Colombo. His father took out a loan against property to secure the assistance of a person to arrange the applicant’s departure from Sri Lanka. The applicant claimed that he left Sri Lanka on his own passport but that the person organised to assist the applicant to leave the country was able to secure his safe departure from that country.
The applicant wrote that he was told he would be travelling to [Country 1] on a tourist visa and was told that he would be travelling to [Country 2] where a visa, accommodation and work had been organised for him. The applicant was required to transit through [Country 3]. The person who arranged the visa travelled with the applicant. The applicant wrote that once he was in [Country 3] however, the person advised the applicant that the journey to [Country 2] had been changed and the applicant would now be going to Australia instead. At the Tribunal hearing, the applicant said that the person advised the applicant he could either go to Australia or back to Sri Lanka. The applicant chose to come to Australia. The applicant also wrote that it was upon his arrival in [Country 3] that his Sri Lankan passport and boarding pass were taken by the person who organised his departure from Sri Lanka, and he was provided a new passport and boarding pass. The new passport had the applicant’s photograph, but it was not his details. Once the applicant was on the flight from [Country 3] to Australia, the person cleared the applicant’s mobile phone and took the passport and boarding pass.
The applicant told the Tribunal that when he arrived in Australia on [date] May 2023, he had no document in his possession and he was fearful and nervous, as well as feeling unwell after the flight. He told the Tribunal that he was sitting in the incoming passenger area and was approached by Australian officials who asked why he was there, and he told the Australian officials that he had problems and that his life was in danger and that is why he left Sri Lanka.
The delegate decision record refers to the applicant being interviewed by a Departmental officer when he arrived. From the Tribunal’s experience, it understands that this is a ‘Located Person Interview.’ This was a separate interview to that conducted by the delegate on 9 July 2023. The delegate decision record details that that the ‘applicant was interviewed by a departmental officer when he arrived who was seeking to determine whether to remove (the applicant) from Australia. It was put to the applicant that the officer clearly informed him that his removal would be based on the responses he provided at that interview. The applicant was asked why he did not report at this interview the problems he had experienced in Sri Lanka.’ The applicant explained at the delegate interview that he was could not eat and it took time for him to settle and think about things, as his destination was [Country 2], and he was told in a short timeframe that he was going to Australia. The applicant provided the Tribunal with a similar response, noting that he was nervous and not feeling well.

The Tribunal requested from the Department a copy of the recording of the ‘Located Person Interview’ referred to in the delegate decision record be provided to the Tribunal. The Tribunal wanted to see what the applicant actually said to the Departmental official because it would have some bearing on the applicant’s credibility. For example, if the applicant told the Departmental officials nothing to suggest he was fearful of returning to Sri Lanka, this would be relevant to whether the applicant was genuine in his protection claims. On the flip side of this, if the applicant had raised a fear of returning to Sri Lanka based on past harm he claimed to have experienced, this may corroborate his claims notwithstanding that the applicant may not have done into the level of detail that he subsequently provided in the protection visa application form and at the delegate interview. Regrettably, the Department did not provide the Tribunal with the record of the ‘Located Person Interview.’
The Tribunal proceeded to operate on the basis that the applicant did express a desire not to return to Sri Lanka when he participated in a ‘Located person Interview’ and that he said, words to the effect that he had experienced harm in Sri Lanka without going into the specifics of the types of harm, or the circumstances that lead to the applicant experiencing this harm. The Tribunal gave the applicant the benefit of the doubt about this, because the applicant’s evidence to the Tribunal was consistent with expressing an unwillingness to return to Sri Lanka without going into specifics. The Tribunal also accepts that this is an appropriate inference because the Tribunal is satisfied that if the applicant had expressed no unwillingness to return to Sri Lanka or had not suggested that he had experienced harm in Sri Lanka (however broadly) at the ‘Located Person Interview’, the delegate decision record would have detailed that the applicant expressed no fear of returning to Sri Lanka and expressed no claim of experiencing past harm in that country.
Noting the applicant had arrived in Australia without a visa or a passport, and his evidence had suggested that the passport he was provided while on [Country 3] for his journey to Australia was not genuine, the Tribunal suggested to the applicant that this may suggest that the applicant was prepared to engage in dishonesty and may not, as a consequence, be a truthful witness about his claimed experiences in Sri Lanka. The applicant told the Tribunal that he did not want to be in Australia and that it was a deception on behalf of the people who organised his travel. The applicant suggested that the plan was to go to [Country 2] (presumably on his Sri Lankan passport) and that the change of travel to Australia and obtaining the other passport was done by others and not by him.

The applicant’s Tamil ethnicity

In the protection visa application form, the applicant identified his ethnicity as Tamil but did not claim that he had experienced harm in Sri Lanka solely based on this ethnicity. As the Tribunal understands the applicant’s case, it was suggested that the applicant’s ethnicity may be a component of why the applicant was identified as a protestor and harmed. That is to say, the applicant was not harmed because of his Tamil ethnicity, but the fact that he was a Tamil was potentially part of the reason that the CID felt they were able to treat the applicant the way they did.
The DFAT Country Information Report details that Tamils are the second largest ethnic group in Sri Lanka, and notes that various Tamil political parties are active. They also have members of parliament. The report details that some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, but that this appears to be because of a language barrier. The FAT report assesses that there is no official discrimination based on ethnicity in public sector employment, but that surveillance of Tamils in the north and east continues, with surveillance of those associated with politically sensitive issues.

The applicant’s brother’s involvement with the LTTE

In the protection visa application form, the applicant noted that his brother was a Liberation Tigers of Tamil Eelam member. This was provided in response to a question about why the applicant left Sri Lanka. As the Tribunal understands the applicant’s case, it was suggested that the fact that the applicant’s brother was previously a member of the LTTE may be a component of why the applicant was identified as a protestor and harmed. That is to say, the applicant was not harmed because of his family association, but the fact that he had this family association was potentially part of the reason the CID felt they were able to treat the applicant the way they did.
However, the Tribunal notes that the DFAT Country Information Report details that the Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DAFT cannot verify that people who have been arrested and detained because of their family connections with former LTTE members.

The applicant’s mental health

The applicant did not claim to suffer from mental health problems prior to his dealings with the CID. It appears that the claims arising from the fact that the applicant suffers from post- traumatic stress disorder, anxiety and depression is a result of those dealings.
Although the applicant claimed that he fears harm not being able to access the mental health support he requires in Sri Lanka, the Tribunal was provided with no material to identify the mental health services that are available in Sri Lanka, nor any evidence to suggest that available services would be withheld from the applicant for reasons or persecution or a deliberate attempt to inflict harm.
The DAFT Country Information Report details that Sri Lank offers some mental health services but there are gaps. The Report does not suggest that services are withheld or available discriminately.

FINDINGS AND REASONS

The issue in the review is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
If the Tribunal is satisfied that the applicant meets any of the criteria for the grant of the protection visa, then the correct or preferable decision is to set aside the decision refusing to grant the applicant the protection visa and remit the visa application back to the delegate for reconsideration with a permissible direction that he satisfies particular criteria for the grant of the visa.
If the Tribunal is not satisfied the applicant meets any of the criteria for the grant of the protection visa, then the correct or preferable decision is to affirm the decision refusing to grant the protection visa.
Having considered all the material provided in support of the applicant’s protection claims, and the responses to the Tribunal’s concerns raised at the Tribunal hearing, the Tribunal has been persuaded that the applicant is a person in respect of whom Australia has protection obligations under the Act and that the correct or preferable decision is to set aside the delegate decision and remit the matter back to the delegate for reconsideration with an appropriate direction.
The Tribunal makes the following findings.
The Tribunal is satisfied that the applicant is a male citizen of Sri Lanka who is a Tamil. The Tribunal accepts that the applicant has no right to enter and reside in any third country.
Therefore, the country of reference for the purpose of the protection visa assessment is Sri Lanka.
The applicant conceded that he is not a member of the same family unit as a person who meets s 36(2)(a) or (aa) of the Act. Based on that concession, the Tribunal is satisfied that the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
The Tribunal accepts that the applicant began working as a [Occupation 1] in Sri Lanka in 2015 and [worked] around Kilinochchi, with occasional trips to other parts of the country.
The Tribunal is also persuaded that the applicant held a position with a [union]. The applicant provided a letter from that organisation noting his involvement. The Tribunal accepts that the organisation represented [members] and provided services such as [assistance] to family members and deceased [Occupation 1]s. The Tribunal also accepts that part of this organisation’s duties was advocacy for the interests of [Occupation 1]s. While the applicant claimed that he ‘played a major role’ in organising protests, the extent of his corroborative evidence was limited to photographs that he identified at the Tribunal as him taking while on ‘jobs’ which showed damage to public areas and masses of people. The Tribunal is not satisfied that those photos demonstrate that the applicant participated in those protests.
The applicant did, however, provide a photograph of himself and another person which he identified as a protest that occurred in Kilinochchi, but was unable to identify when this protest occurred. He also provided a video which he claimed was broadcast to the media.
The applicant provided credible evidence about his past experiences of harm and addressed the Tribunal’s concerns about why he failed to report to higher authorities what had happened to him in Sri Lanka. The applicant also provided a credible explanation about why he did not relocate within Sri Lanka and instead decided to leave that country.
The Tribunal accepts that the applicant was detained by CID officers shortly after appearing on media in connection with a protest in [2022]. The Tribunal accepts that the CID officers were interested in the applicant because of his involvement with that protest but is not persuaded that the CID officers were interested in the applicant because of his ethnicity or because his brother was an LTTE member. That interest, if there was any, it appeared to be ancillary to the applicant’s profile as a person who participated in a protest and was broadcast to the media. The Tribunal is satisfied that if the applicant had not participated in that protest and come to public attention via the media broadcast, he would not have otherwise been of interest to the CID.
Although the Tribunal did have concerns about relying on the applicant’s evidence given that he entered Australia without a visa and had participated in using a false passport to depart [Country 3], the Tribunal is satisfied in the circumstances that the applicant felt he had little choice but to comply with the directions of the people who organised his departure from Sri Lanka. In the Tribunal’s assessment, the applicant faced the prospect of either going to Australia or returning to Sri Lanka where he believed that his abuse at the hands of the CID would continue. Considering the totality of the evidence, in the circumstance of this review, the Tribunal cannot be satisfied that because of the circumstances of the applicant’s arrival in Australia, it can reasonably conclude that no weight should be given to the applicant’s narrative about what happened to him in Sri Lanka.
The Tribunal is satisfied that the report of [Organisation 1], together with the medical records that had been provided concerning the applicant’s medical condition while in immigration detention, corroborate the applicant’s claims about the past harm he experienced in Sri Lanka.
However, concerning the applicant’s claim that he would be harmed because he would return to Sri Lanka as a failed asylum seeker on a temporary travel document, the Tribunal is not satisfied that there is a real chance of serious harm or real risk of significant harm to the applicant on this basis because the applicant’s own evidence is that he departed Sri Lanka on his own passport. While the Tribunal accepts that the applicant no longer holds this passport, the Tribunal is not satisfied that the applicant would be unable to obtain a replacement and is not satisfied that the replacement of this passport would lead the applicant to be a person of interest to the authorities. The Country Information Report details that the returnees are not detained for matters other than illegal departure. The Tribunal is not satisfied that the circumstances of the applicant’s departure from Sri Lanka were illegal because the Tribunal does not accept that the applicant was of an official adverse interest to the Sri Lankan authorities. It follows that while the applicant may well have used a person so secure his departure from Sri Lanka by obtaining a visa to another country, the Tribunal is not satisfied that the person who assisted him had to ‘grease the wheels’ to use the vernacular to ensure that the applicant could depart Sri Lanka.
The reason the Tribunal comes to this conclusion is because the Tribunal thinks it highly unlikely that the CID officers would make the applicant a person of adverse interest to the Sri Lankan authorities in general. This is because of the nature of how they treated the applicant during the forty or so occasions that he was required to attend on the officers where he was subjected to horrendous abuse. The Tribunal is not satisfied that those officers would take the risk of making the applicant known to any other arm of the Sri Lankan state for fear that if the applicant ever had any dealings with those other arms, he would disclose what happened to him.
The Tribunal is satisfied that if the applicant returned to Sri Lanka, he would do so on a reissued passport. The Tribunal is not persuaded that the applicant would be of adverse interest to any person, authority or group in Sri Lanka other than those officers of the CID who previously harmed him. The Tribunal assesses that the likely outcome is that if the applicant returned to Sri Lanka, he would have no problems at the airport returning to Sri Lanka.
The Tribunal is satisfied that the harm directed to the applicant would come from when he returned to live at his family home, which the Tribunal is satisfied the applicant would do because he does not have another place to live in Sri Lanka. The Tribunal is satisfied that soon after his return to the family home, the CID officers would be aware of his presence, given the applicant’s oral evidence that they had already attended on the family home and inquired as to his whereabouts and were told by his mother, who was not aware of the full story about what happened to the applicant, that he was in Australia.
The Tribunal is satisfied that if returned to Sri Lanka, the applicant would resume doing what he did previously at the request of the CID officers. The Tribunal is satisfied that this would involve various acts of sexual and physical assault, including rape. The Tribunal is satisfied that the applicant would comply with those requests for fear that that the CID officers would carry out threats of charging him with offences against the Sri Lankan state, or for fear of worse forms of torture, or for fear of his family finding out what he had been subject to during the past periods where he was required to attend on the CID camp.
According to the Country Information Report, Sri Lanka lacks independent and efficient mechanisms to address complaints of torture. While mechanisms exist, they are typically not effective in practice. For example, the HRCSL can inquire into complaints of torture and make recommendations, including for prosecution, to the Attorney-General’s Department. The HRCSL can also recommend disciplinary action against offenders by relevant state institutions and financial compensation for victims. According to the US Department of State reporting, the HRCSL documented 260 complaints of physical and mental torture from January to August 2020 in addition to 37 complaints from prisoners. In response to allegations of torture, the HRCSL carried out routine visits of detention centres, but DFAT cannot verify if such visits continue. The Supreme Court has jurisdiction to hear and determine complaints of fundamental rights violations, including torture, but judgements can take many years. Complainants have difficulty gaining access to the Supreme Court, as it sits only in Colombo and legal costs can be prohibitive.
DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war, but that it is still used, including as a routine tool of policing. Because few reports of torture are verified within Sri Lanka, owing to the lack of investigative avenues, it is difficult to determine the exact prevalence of torture, but multiple domestic and international sources consider it to be common. DFAT has no evidence that torture is state-sanctioned, but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence.
The Tribunal is satisfied that the applicant would not complain about his treatment by the CID officers in question because there is clearly a lack of effective mechanism to complain about the treatment in Sri Lanka. The Tribunal is also satisfied that if the applicant tried to complain about the treatment he has received, it would subject him to greater physical harm by the CID officers and would not receive any protection in any event.
The Tribunal is not satisfied that the harm the applicant will face in Sri Lanka will be negated by the applicant relocating to another area of Sri Lanka. In the Tribunal’s assessment, the CID officers who have assaulted the applicant on multiple occasions over a prolonged period of time (which the Tribunal understands to be 11 months) have a vested interest in finding the applicant in the event that he relocated for fear that their abuse would become known. The Tribunal is satisfied in those circumstances that the applicant would continue to face a real risk of harm in the event that he relocated.
In the Tribunal’s assessment, if the applicant were required to return to Sri Lanka, the likely outcome is that he would have to participate in ongoing physical and sexual abuse from the CID officers. The Tribunal’s assessment is that this treatment is cruel, inhuman and degrading treatment and/or torture. The Tribunal is satisfied that there is a real risk of this resuming on his return to Sri Lanka for the reasons discussed.
Concerning the claim that the applicant would be harmed in Sri Lanka because he is a Tamil male who previously protested against the Sri Lankan government, the Tribunal satisfied that, in the absence of the harm he will suffer from the CID officers in question, he would be able to express his political opinion freely in Sri Lanka. The DFAT Country Information Report does not suggest, in the Tribunal’s assessment, that no political opposition is tolerated in that country. Further, it is not unreasonable for security agencies to interview people who have organised protests where violence and property damage has occurred. The Tribunal is not confident that the protest the applicant was free of violence or property damage requiring police to investigate to understand whether any crime had been committed.

CONCLUSION

The Tribunal is satisfied that there is a real chance that the applicant will suffer harm in Sri Lanka. The Tribunal is not satisfied that the harm will be directed to the applicant because of his race, religion, nationality, membership of a particular social group or political opinion. Rather, the harm will be directed to the applicant personally be a group of CID officers who have demonstrated an ongoing interest in sexually abusing and physically assaulting the applicant. While the applicant’s involvement as a protestor may have brought him to the attention of these particular CID officers in the past, the Tribunal is not satisfied that it is for reasons of his political opinion, or any other grouping under s 5J of the Act, that he will be harmed in the future. Rather, the applicant will be subjected to harm in Sri Lanka because of the CID officers’ sexual interest in the applicant and enjoyment physically and sexually assaulting the applicant. Therefore, the applicant does not have a well-founded fear of persecution.

The Tribunal is satisfied that there is a real risk the applicant will suffer significant harm as a result of his removal from Australia to Sri Lanka because he will be forced to comply with the sexual demands and physical assaults of the CID officers.
The Tribunal is not satisfied that the applicant would be persecuted because of his post- traumatic stress disorder. The Tribunal is also not satisfied that by itself, that disorder means that the applicant will suffer significant harm in Sri Lanka. Rather, the significant harm that the applicant will face as a result of returning to Sri Lanka and being subjected to ongoing sexual and physical abuse will exacerbate his mental health problems.

Refugee

For the reasons given above, the Tribunal is not satisfied that the applicant has a well- founded fear of persecution in Sri Lanka due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person who satisfies s 36(2)(a) of the Act.

Complementary protection

For the reasons given above, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real chance he will suffer significant harm.
Therefore, the applicant is a person who satisfies s 36(2)(aa) of the Act.

Member of the same family unit

For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.

DECISION

The Tribunal sets aside the decision of the delegate dated 29 August 2023 refusing to grant the applicant a protection visa and remits the visa application back to the delegate for reconsideration with a direction that the applicant satisfies s 36(2)(aa) of the Migration Act 1958 (Cth).
Nathan Goetz 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.

…

[2023] AATA 4770

14 November 2023

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