2315064 (Refugee)

2315064 (Refugee) [2023] AATA 4826 (6 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Carina Ford
CASE NUMBER:  2315064
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Alison Murphy
DATE:6 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 06 December 2023 at 9:21am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil ethnicity – political opinion – family’s involvement with the Liberation Tigers of Tamil Eelam (LTTE) – mother’s disappearance – participated in missing persons protests – detained overnight by the authorities – risk of harm on return – change in government in Sri Lanka – departed illegally on a false passport – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 487ZI
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 by a delegate of the Minister for Home Affairs on 20 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Sri Lanka who arrived in Australia [in] July 2023 and applied for the visa on 23 July 2023. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.
The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A] (by video from Sri Lanka) and brother [Mr B] (by video from Sydney). The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
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–5LA, 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, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The delegate’s decision records that the applicant arrived in Australia [in] July 2023 on a photo-substituted Sri Lankan passport in the name of [Alias 1] born [Date 1]. That passport was subsequently forfeited by Australian Border Force pursuant to s 487ZI(2) of the Act. The applicant was taken into immigration detention on arrival where he remained at the time of the Tribunal hearing.
After his detention, the applicant produced to the Department copies of his Sri Lankan passport, national identity card, birth certificate, marriage certificate and family registration card all showing his identity to be [the applicant] born [Date 2]. The delegate accepted that to be his correct identity and that he is a national of Sri Lanka. The Tribunal accepts the applicant is a Sri Lankan national and has assessed his claims against Sri Lanka as the country of nationality and the receiving country.
The applicant’s personal background
As noted above, there is no dispute about the applicant’s identity.
The applicant is a [age]-year-old man from Jaffna in Sri Lanka’s Northern Province of Tamil ethnicity and Hindu religion. The Tribunal notes the applicant’s date and place of birth is confirmed in his passport and national identity card and DFAT reports that Tamils make up most of the population in the Northern Province.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [3.2]
The applicant grew up in a household comprising his parents, brother [Mr C] and sister [Ms D]. Another brother, [Mr B], has been resident in Australia since 2006. The applicant and [Mr B] have the same mother but different fathers and [Mr B] is now an Australian citizen. The applicant’s mother has been missing since 2008, presumed deceased. At the time of the Tribunal hearing the applicant’s wife, children, father and sister remained living in Sri Lanka, his sister being married and living with her own family. The applicant gave evidence that his brother [Mr C] left Sri Lanka approximately eight months ago, they have not had recent contact and he does not know where he is.
The applicant finished Year [level] of high school in 2008 after which he worked as a labourer for a [specified] company. His high school education was disrupted by the escalating civil conflict in Sri Lanka and the disappearance of his mother in May 2008.
The applicant is married with two children, now aged [age] and [age]. His wife and children live in [Village 1], Jaffna District. Copies of his marriage certificate and birth certificates for each of his children have been provided to the Department. At hearing the applicant’s wife gave evidence that she and the children had left the house they lived in with the applicant and his father and relocated to a relative of the applicant’s wife in the [Town 1] area.
The Tribunal accepts each of the above matters to be true.
The applicant’s claims for protection
In summary, the applicant claims to fear persecution in Sri Lanka because of his Tamil ethnicity and political opinion. He claims that a number of members of his family were members of the Liberation Tigers of Tamil Eelam (LTTE) and the Black Tigers including his father who was placed in a rehabilitation camp and his mother who disappeared in 2008, presumed killed by the Sri Lankan authorities. He claims that his political activism on behalf of his mother and others who disappeared during the civil war has brought him to the attention of the Sri Lankan authorities, who have detained, threatened and tortured him.
The applicant’s family’s involvement with the LTTE
The applicant claims, and the delegate accepted, that a number of members of his family were members and/or supporters of the LTTE who died, disappeared or fled the country during Sri Lanka’s civil war.
The applicant has provided a significant amount of documentary evidence to the Department. At hearing he gave evidence that most of that documentary evidence was obtained from his aunt [Ms E] who lives in [Country 1] where she has been recognised as a refugee. No concerns were raised by the delegate with the applicant’s account of his family’s involvement with the LTTE or the documentation produced evidencing that involvement.
The applicant’s father’s family
The Tribunal accepts that the applicant’s father, [Mr F], was an LTTE combatant up until his marriage in the late 1980s or early 1990s, after which he provided other kinds of assistance to the LTTE such as by providing food and accommodation. While he ceased fighting for the LTTE some 20 years ago, he remained a member and supporter of the LTTE until 2007.
Country information indicates that following the complete breakdown of the ceasefire agreement in 2006, the Sri Lankan Army (SLA) focused first on liberating eastern Sri Lanka, before refocusing its military offensive on the LTTE’s stronghold in the north in July 2007.[2] The applicant claims that during this military offensive his father was detained for questioning by the Criminal Investigation Department (CID) for several days, during which time he was repeatedly beaten. The delegate accepted this to be the case and the Tribunal concurs, considering the applicant’s claims to be consistent with independent country information in this regard.
[2] Besieged, Displaced, and Detained : The Plight of Civilians in Sri Lanka’s Vanni Region | HRW; Sri Lanka – ICRC Bulletin No. 11 / 2007 - ICRC
The applicant claims that following his detention in 2007, the applicant’s father feared for his safety at the hands of the SLA and surrendered himself into the protective custody of the International Committee of the Red Cross (ICRC). At hearing he gave evidence that the ICRC set up four IDP camps for Tamils prior to the end of the war and his father remained in protective custody in an ICRC camp for approximately 5 months during 2007. The Tribunal accepts this to be the case, noting the copy of [Mr F]’s ICRC registration card confirming his detention. Country information indicates that the ICRC provided shelter, supplies and medical care in IDP camps during this period.[3] The Tribunal further accepts that while the applicant’s father was in the custody of the ICRC, the SLA continued to visit the family home looking for the applicant’s father.
[3] Sri Lanka – ICRC Bulletin No. 13 / 2007 - ICRC
The Tribunal accepts that the applicant’s paternal uncle, [Mr G], was a member of the LTTE’s suicide squadron The Black Tigers and died while fighting the Sri Lankan Army at [location] [in] June 1997. In making that assessment the Tribunal notes the birth certificate submitted for [Mr G] as well as a media release issued by the LTTE confirming his death and the written evidence of [Mr H], a lawyer known to the family in Jaffna.
At hearing the applicant gave evidence that his father had another brother who was an LTTE supporter who wasn’t strong enough to fight and died from natural causes. His father also has an older stepsister, who is now an elderly woman living in Jaffna.
The Tribunal accepts the above matters to be true.
The applicant’s mother’s family
The applicant’s mother, [Ms I] (known after her marriage as [Mrs F]), disappeared while travelling to [City 1] in May 2008 and is presumed to have been killed by the SLA. The Tribunal notes the English language translation of an article in a Tamil newspaper dated [in] May 2008 which names the applicant’s mother as a person who went missing while travelling to [City 1] as well as a separate article from [another news outlet] of the same date which also names the applicant’s mother. At hearing the applicant gave evidence that his father and children believed their wife and mother had been killed in retaliation for his father’s involvement with the LTTE. The Tribunal accepts that belief to be genuinely held and country information cited below indicates it may well be accurate.
The applicant’s maternal grandmother, [Ms J] (also spelled [variant spelling), reported [Ms I] missing to the ICRC and the Human Rights Commission of Sri Lanka (HRCSL). The Tribunal notes the registration from the HRCSL dated 22 May 2008 registering the complaint made by [Ms J] as well as the translation of an article in a Tamil newspaper reporting that [Ms J] reported her daughter missing to the HRCSL [in] May 2008.
The applicant’s maternal uncle, [Mr K], was shot and killed by the Sri Lankan Army in 1987. The applicant has been told he was a supporter but not a member of the LTTE.
The applicant’s maternal aunt, [Ms L], was a member of the LTTE and was killed in an aerial bombing in 1996 during a battle with the Sri Lankan Army. The Tribunal notes her death certificate recording her date of death as [date] August 1998 age [age] and her cause of death as a bomb attack; a funeral notice and a screen shot from a website indicate that she held the rank of captain and died during an attack against the Sri Lankan Army while the LTTE was attempting to advance to [Town 2], Killinochichi.
The applicant’s maternal aunt, [Ms E], was an LTTE member and fighter for approximately 15 years. She fled to [Country 1] in 2007 and was granted asylum in 2013. The Tribunal notes the Titre de Sejour issued by the French authorities indicating she holds refugee status in that country.
The applicant’s maternal aunt, [Ms M], has been missing since March 2009. Her sister [Ms E] registered a tracing request with the French Red Cross but she has not been located. The Tribunal notes the copy of the tracing request lodged with the French Red Cross by [Ms E] dated 22 April 2011.
The applicant’s maternal cousin, [Mr N] (son of [Ms M]), was granted asylum in [Country 1] in 2016. The Tribunal notes the copy of his birth certificate and untranslated correspondence from the Office Francais De Protection Des Refugies Et Apatrides as well as his French national identity card confirming he holds a residence permit in that country as a refugee.
The applicant’s maternal uncle, [Mr O], fled to [Country 2] where he was accepted as a refugee by the UNHCR and resettled in [Country 3] where he was granted asylum and later became a [Country 3] citizen.
On the basis of the documentary and oral evidence before it, the Tribunal accepts each of the above matters to be true.
Other documentary evidence submitted to the Department
A letter from [Mr H], lawyer, states that he has known the applicant and his family for a considerable period of time and that the applicant’s family supported the LTTE from the 1990s until 2007. He states that the applicant’s uncle [Mr G] was an LTTE member who died in 1996, while the applicant’s father [Mr F] joined the LTTE in 1992 and was a member until 2007. At hearing the applicant gave evidence that [Mr H] had known his family well for many years.
The Tribunal notes that [Mr H] was himself arrested in May 2023 along with members of the Tamil National People’s Front, following a protest against the illegal construction of a Buddhist temple in Jaffna.[4] Country information indicates that Tamil lands have been subjected to decades of ‘Sinhalisation’, including the establishment of Buddhist temples through the appropriation of Tamil land.[5] In 2021, [Mr H] held a press conference seeking an international enquiry and support for the repeal of Sri Lanka’s Prevention of Terrorism Act, widely believed to be a tool used to suppress Tamils and political dissidents in Sri Lanka.[6]
[4] [Source redacted]
[5] Accelerated Sinhalisation Into Tamils Traditional Homeland| Countercurrents
[6] [Source redacted]
A letter from [Mr P], Grama Officer from [named Division], states that he knows the applicant and his family well; that the applicant was threatened by the Sri Lankan Army because of his participation in non-violent protests; that he was under surveillance by the military as had been confirmed by the people in the village and that as his relatives were also in the LTTE, he is often subjected to enquiries by the CID. [Mr P] expresses the view that there is no guarantee to the applicant’s life in Sri Lanka. DFAT reports that the grama niladhari is the local village officer through whom people register their residence and obtain national identity cards and fulfil various other local government responsibilities.[7]
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021
The Tribunal considers the letters of support from [Mr H] and [Mr P] are indicative of the applicant’s family’s long and continuing involvement in issues affecting Tamils in Northern Province.
The applicant’s involvement in advocating for families of missing persons
For the reasons set out above, the Tribunal has accepted that the applicant’s mother disappeared in May 2008 and is presumed to have been killed by the SLA. The International Commission of Missing Persons reports that the conflict in Sri Lanka was characterised by systematic abuses, with both the Sri Lankan government and the LTTE responsible for tens of thousands of persons going missing during the war.[8] DFAT reports that while there is no agreed figure on the number of missing or disappeared persons in Sri Lanka, it is thought to rank among the highest in the world. In 2016 Sri Lanka’s Office for National Unity and Reconciliation said the missing from the war and separate Marxist insurrections numbered 65,000, while in 2018 Sri Lanka’s Office for Missing People estimated at least 20,000 people remained missing without explanation, the majority of whom are likely to have been members or supporters of the LTTE.[9]
[8] ICMP Sri Lanka
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [4.5]
The applicant claims that he first attended missing persons protests following his mother’s disappearance with his grandmother. He states that between his mother’s disappearance in 2008 and 2016, the family’s focus was on trying to find their mother and the applicant’s father did not have any problems with the Sri Lankan authorities, despite his past involvement with the LTTE, and the applicant’s father confirmed this in his own written statement lodged with the Tribunal. The applicant speculates this may be because the family’s publicised complaints to the ICRC and the HRCSL may have caused the Sri Lankan authorities to be more careful of their interactions with the family.

The applicant claims that in about 2016, having recently married, he started participating in protests and demonstrations concerning Tamils who went missing during the war by himself. Initially he just wanted to know the truth about what had happened to his mother, but as time progressed he became more actively involved in the protests, gathering with other families of missing Tamils and marching to public places such as the HRCSL and the ICRC, holding banners and chanting. He claims that CID officers and members of the Sri Lankan Army videoed the protests and participants often received threatening phone calls, telling them to stop their protesting or put their lives in danger.
The applicant states that as he became more prominent in the protests, he started receiving threats. From about 2021 he would be approached by members of the Sri Lankan authorities during or after protests and he also received threatening phone calls. He claimed such experiences were common among protesters and he continued to attend until his departure from Sri Lanka, most recently [in] April 2023 in [Town 1]. He gave evidence that those protests took place between [date] and [date] April 2023, but he only attended on [date] April 2023.
The delegate did not accept the applicant had attended protests for missing people in Jaffna in 2023 or at any other time, considering that the applicant’s evidence lacked credibility as he had provided no photographs of himself attending the protests and the delegate was unable to find any record of such a protest occurring in the north of Sri Lanka on [date] April 2023 as claimed by the applicant. The delegate also considered that if the applicant had been receiving threatening phone calls since 2021 as claimed, he could have easily changed his SIM card to stop those threats.
Having had the benefit of the oral evidence of both the applicant and his wife at the Tribunal hearing, the Tribunal has reached a different view on that issue:
·Firstly the applicant has explained that his photographs were deleted from his phone by the SLA when he was detained a few days after the last protest he attended in April 2023. As well, changing his SIM card would not prevent the Sri Lankan authorities from obtaining his new phone number, given the compulsory system of registration of SIM cards that has operated in that country since at least 2017;[10]
·The applicant has consistently stated that he attended these protests, first with his maternal grandmother (who had two daughters go missing in the war) and later on his own. Country information indicates that such protests have been ongoing in Sri Lanka, and in particular Northern and Eastern provinces. While the delegate was concerned that the country information they were able to locate indicated that the protests in April 2023 related to Sri Lanka’s Prevention of Terrorism Act, the article cited by the delegate makes reference to regular protests by Tamils in the north and the east demanding that the government release information about people ‘disappeared’ by the military during the war and the demands of the protesters regarding a number of issues facing Tamils in the north and the east including the economic crisis, repressive laws and political prisoners.[11] Other material provided by the applicant indicates missing persons protests and demonstrations were taking place in Northern Province in April 2023;
·The applicant’s evidence as to his participation in the missing persons protests is corroborated by the oral and documentary evidence of his wife and brother, as well as letters from [Mr P], Grama Officer and [Mr H] as referred to above;
·Most importantly, the applicant’s participation in these protests is entirely consistent with his personal experience of having his own mother disappear in the last year of the war. As noted above, the applicant has produced credible documentary evidence of her disappearance and the delegate records that they were able to verify that a news article naming the applicant’s mother as a missing person was genuine;
·The applicant has been consistent in his evidence as to the threats he received at and following those protests. He was approached by persons at the protests whom he identified as being from the SLA by their short haircuts and government-issued shoes, even though they wore plain clothes. Those people told him he should not attend the protest meetings and that he would be shot and killed if he continued. From about 2021 he received threats by telephone also and those persons spoke poor Tamil and threatened him. He gave evidence that he wasn’t initially worried about the threats he received, but his wife became increasingly concerned for his safety;
·The applicant’s evidence about his own experiences is consistent with country information confirming that missing persons protesters in the east and north of Sri Lanka are surveilled and harassed by the Sri Lankan authorities. DFAT reports that the Sri Lankan authorities continue to monitor public gatherings and protests in the north and the east, practising targeted surveillance and questioning individuals and groups. DFAT notes that security forces are most likely to monitor people associated with politically sensitive issues including those related to the war including missing persons and memorialisation events;[12]
·Similarly the UK Home Office reports that while protests in Colombo are peaceful and carnival-like, the situation is very different in the north and the east, where anti-government sentiment runs deep. It reports that Tamils fear the authorities will not exercise the same kind of restraint that has been afforded to protesters in Colombo and civil rights activists report that demonstrations have always been met with state violence.[13]
[10] Sri Lanka’s govt issues mandatory SIM registration notice (commsupdate.com)
[11] Mass protests in Sri Lanka’s northern and eastern provinces against Wickremesinghe’s Anti-Terrorism Bill - World Socialist Web Site (wsws.org)
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [3.9]
[13] UK Home Office Country Policy and information note: Tamil separatism, Sri Lanka, April 2023 at 3.2.10
For all of the above reasons, the Tribunal accepts the applicant attended and participated in missing persons protests in Jaffna and surrounding towns up until April 2023 as claimed and that he was threatened by members of Sri Lanka’s security forces both at the protests and over the phone.
The applicant’s claimed detention by the Sri Lankan authorities
The applicant claims that he was detained by members of the Sri Lankan authorities [in] May 2023, taken to an army camp where he was held overnight and beaten before being released the following day.
In her evidence to the Tribunal, the applicant’s wife gave evidence about the threats received by her husband, his subsequent detention and the visits to the family home by CID officers after his departure. The Tribunal accepts that she has since moved with their children from the applicant’s family home to the home of her own relatives in [Town 1] because of her fear of the authorities.
The applicant’s claimed experience of being detained, threatened and harmed while detained is entirely consistent with independent country information. DFAT notes reports of arbitrary arrests over the past few years and states that Sri Lanka’s media regularly accuse civil society activists and NGOs of being traitors and LTTE sympathisers of being backed by Western powers, with some reporting threats and intimidation. Participants in politically sensitive protests in the north, particularly in relation to missing persons and land returns, are monitored and sometimes questioned by the authorities. DFAT also reports that the Sri Lankan government is increasingly intolerant of criticism or political dissent especially with reference to alleged historical abuses.[14]
[14] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [3.75]–[3.77]
The US Department of State stated in 2022 that it had received credible reports of significant human rights issues in Sri Lanka, including (but not limited to) numerous reports of arbitrary arrest and detention and that the government took minimal steps to identify, investigate, prosecute or punish officials who commit human rights abuses. It noted that the government was reported to monitor, surveil, intimidate and harass civil society organisations, including the families of victims of rights violations. Such harassment included repeated visits by state security services and phone calls from unknown actors believed to be state security officials who would call issuing threats, alleging they had supported terrorism and suggesting they were being surveilled. Organisations that received frequent visits were in three overlapping categories: those located in the North and the East provinces; those whose activities focused on human rights and accountability; and those publicly known to engage with the international community.[15] The Tribunal accepts the applicant falls squarely into at least of two of those categories.
[15] US Department of State 2022 Country Reports on Human Rights Practices: Sri Lanka at Sri Lanka - United States Department of State
In March 2022, the UNHCR provided an update to the Human Rights Council on the situation in Sri Lanka, reporting that the economic crisis in that country was fuelling the marginalisation and discrimination against minority communities including Tamils. It noted that it had received a number of reports stating that victim groups continue to face harassment and intimidation from the authorities, including multiple visits from intelligence and police officers enquiring about plans for protests or commemorations, or their past links with the LTTE. In addition rehabilitated LTTE members and their families or anyone considered to have any link to the LTTE during the conflict were reported to be the targets of constant surveillance.[16]
[16] United National General Assembly, Report of the United National High Commissioner for Human Rights, Promoting
reconciliation, accountability and human rights in Sri Lanka, A/HRC/49/9, 18 March 2022 [32]
In light of the applicant’s consistent evidence, the corroborative evidence of his wife and the available country information, the Tribunal accepts the applicant was detained overnight by the Sri Lankan authorities in May 2023 and that he was mistreated while in detention because of his participation in protests relating to Tamils who remain missing following Sri Lanka’s civil war.
Risk of harm on return
For the reasons set out above, the Tribunal has accepted that the applicant is a young Tamil male from Jaffna whose family was heavily involved in the LTTE. In particular the Tribunal has accepted that his father and paternal uncle were LTTE combatants, his paternal uncle dying in the conflict as a suicide bomber. As well the Tribunal has accepted that two of the applicant’s mother’s siblings were killed in combat for the LTTE, while the applicant’s mother and her sister went missing in the late stages of the conflict and are presumed killed by the Sri Lankan Army in retaliation for the family’s support for the LTTE. The Tribunal has also accepted that two other siblings and a nephew of the applicant’s mother have been recognised as refugees on the basis of their own and/or their family’s involvement in the LTTE and resettled in Europe.
While DFAT reports that all members of the mostly Tamil civilian populations of formerly LTTE-controlled areas including Jaffna were required to interact with the LTTE’s military and civilian administration as a matter of course,[17] the Tribunal considers the applicant’s family’s involvement in the LTTE during the conflict is markedly different in degree than the majority of the Tamil civilian population. Rather it evidences a commitment to the LTTE on both sides of his family that resulted in the death or exile of almost all of the family members in the generation above him, noting that the applicant and his siblings were still children when the war ended.
[17] Department of Foreign Affairs and Trade, DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October 2014 at [2.1]–[2.5]
The Tribunal has also accepted that the applicant has attended protests seeking information about persons missing from the war between 2016 and his departure in July 2023 and that he was detained overnight by the Sri Lankan authorities in May 2023 and mistreated while in detention. Such protests remain sensitive to the Sri Lankan authorities, whose core focus is to prevent any potential resurgence of a separatist movement that seeks the establishment of Tamil Eelam and who draw no material distinction between the violent means by which the LTTE sought to further that goal and non-violent political advocacy.[18]
[18] KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC); Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [3.75]–[3.77]
While the Sri Lankan government established the Office of Missing Persons in September 2016 under a UN Human Rights Council resolution (Resolution 30/1) to address the issue of missing persons in Sri Lanka, it is regarded as compromised as it allowed the government to appoint commissioners implicated in historical abuses. The lead investigator in a number of high-profile disappearances and other serious human rights violations where some progress had been made, Inspector Nishantha Silva of the Police CID, fled Sri Lanka to Switzerland after the presidential election in 2019, fearing reprisals. The government has since issued warrants for his arrest, including one for murder, and is reportedly seeking his extradition from Switzerland. The Sri Lankan government withdrew its co-sponsorship of Resolution 30/1, announcing it would pursue reconciliation through domestic processes. DFAT assesses that progress on accountability for war-era human rights violations is unlikely in the near future and that activists (and other groups) probing historical abuses, including missing persons, face a high risk of official harassment and a moderate risk of violence.[19]
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [2.34]–[2.42]
In September 2023, a Sri Lankan judge presiding over politically sensitive cases in the Mullthivu district involving excavations of a mass grave site, the suppression of an LTTE memorial event and the removal of an unlawfully constructed Buddhist shrine resigned and fled Sri Lanka, claiming his life had been threatened. He claimed that the Attorney General had invited him to his office and compelled him to reverse his order regarding the removal of the Buddhist shrine and that members of Parliament and other politicians within the Sinhala Buddhist community had threatened his life. His resignation raised questions about the independence of the judiciary and the political pressure exerted on judicial autonomy as well as the safety of judges, particularly Tamil judges, in Sri Lanka.[20]
Change in government in Sri Lanka
[20] Resignation and flight of Sri Lanka judge sparks concern over nation’s judicial independence - JURIST - News; Tamil judge flees Sri Lanka amidst threats, highlighting grave human rights concerns - TGTE | Tamil Guardian
The Tribunal has considered the changes to the political and economic situation in Sri Lanka since the publication of much of the country information referred to above. At the time the DFAT report was issued in December 2021, Gotabaya Rajapaksa was President and his elder brother Mahinda Rajapaksa (formerly the President of Sri Lanka from 2005–2015) had returned to power as Prime Minister. Gotabaya Rajapaksa was defense secretary during the Rajapaksa presidency and has long been implicated in war crimes during the war against the LTTE.[21]
[21] Meenakshi Ganguly Human Rights Watch A Year after Rajapaksa, Sri Lanka remains in crisis 12 July 2023
This followed a period in which the former President Maithripala Sirisena’s government (2015–2019) had embarked upon a path of reconciliation with the Tamil minority which appeared to make some progress. DFAT reported that the Rajapaksa family’s return to power had the effect of reversing advancement of reconciliation, accountability and human rights and threatened a return to patterns of discrimination and widespread violations of human rights previously experienced during the conflict.[22]
[22] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [2.3]–[2.5]
This was in the context of Gotabaya Rajapaksa’s government seeking to retain the support within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and promoting strong state security. Local sources, both Tamil and non-Tamil, advised DFAT that the human rights improvements achieved under the Sirisena government, including in relation to freedom of expression, were being reversed pointing to the increasing militarisation of the civilian government, the 20^th Amendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics.[23]
[23] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [2.32]
More recently still, an economic crisis in 2022 triggered massive anti-government protests which ultimately led to the resignation of Gotabaya Rajapaksa and Mahinda Rajapaksa along with other cabinet ministers, with the Rajapaksa brothers fleeing Sri Lanka. Ranil Wickremesinghe was sworn in as President on 21 July 2022, and appointed Dinesh Gunawardena as Prime Minister the next day. Gotabaya Rajapaksa returned to Sri Lanka in October 2022 and in the same month the ICG reported that President Wickremesinghe was building a government with the backing of the Rajapaksas, as well as that of ministers convicted or credibly accused of large-scale corruption and other serious crimes. The ICG reports that hopes for political reform under the new Wickremesinghe government have fallen further in the wake of his aggressive moves to ban non-violent protests around key public buildings using the Official Secrets Act and arresting protesters, often for alleged involvement in minor offences, including under the draconian Prevention of Terrorism Act.[24]
[24] International Crisis Group, Asia Commentary, ‘Sri Lanka: Keeping the Storm at Bay’, 10 October 2022.
In September 2023 the ICG reported that there is no sign the Wickremesinghe government intends to discard practices that have ‘preserved impunity and protected state power in Sri Lanka for years’, rather ‘the evidence points to continued repression without accountability’ and notes the continuing arrests and detentions of political activists under the Prevention of Terrorism Act and the ‘intense’ continuing surveillance of Tamil civil society and families of those disappeared in the north and the east during the civil war.[25]
[25] International Crisis Group, Alan Keenan, Senior Consultant, Sri Lanka, ‘Sri Lanka Needs Truth, but Not (Yet) a Truth Commission’, 7 September 2023
In November 2023, a five-judge bench of the Supreme Court ruled that Gotabaya and Mahinda Rajapaksa, their younger brother and ex-finance minister Basil Rajapaksa and two former central bank governors and top treasury officials had violated public trust and breached the constitution through economic mismanagement, directly contributing to the economic crisis.[26] The Rajapaksas reportedly remain influential in the SLPP in which Mahinda Rajapaksa’s oldest son, Namal Rajapaksa, plays a leading role and Mahinda Rajapaksa’s younger brother, Basil Rajapaksa, has aspirations to return to power.[27] The current President Wickremesinghe retains his position with the support of the SLPP, of which the Prime Minister and most of the cabinet are members.[28]
[26] Sri Lanka Supreme Court rules government officials breached public trust in management of the economy - JURIST - News
[27] Daily Mirror, ‘Basil eyes SLPP leadership; senior MPs shoot it down’, Jamila Husain, 6 July 2023; The Week, ‘Can Rajapaksas make a comeback to Sri Lankan politics?’, Lakshmi Subramanian, 2 July 2023; economynext, ‘SLPP gen sec says Basil Rajapaksa fit to lead Sri Lanka’, 11 April 2023.
[28] United States Institute of Peace, ‘A Year After Mass Protests, Sri Lanka’s Governance Crisis Continues’, Nishan de Mel, Nilanthi Samaranayake, Ambika Satkunanathan, 20 July 2023; AFP – France, RFI, ‘Anger over bloated new Sri Lanka government’, 8 September 2022.

In the light of the above information, the Tribunal considers there to be little reason to believe that the 2022 ousting of Gotabaya and Mahinda Rajapaksa as President and Prime Minister will lead to any near term improvement in Sri Lanka’s political and human rights situation.
The applicant’s previous departure from Sri Lanka and family remaining in Northern Province
The Tribunal notes the applicant’s unsuccessful attempt to leave Sri Lanka on his own passport in April 2023, prior to his detention the next month. For reasons that are not clear to the applicant, he was directed to return to Sri Lanka by the people smuggler as his ongoing passage could not be arranged and he did so without incident. The Tribunal does not consider his ability to depart and re-enter Sri Lanka at that time to be indicative of what will happen if he is returned to Sri Lanka, now or in the foreseeable future. This is because since his return in April 2023, the applicant has been detained by local authorities in Northern Province and subsequently departed Sri Lanka illegally using a genuinely issued passport in another identity in which the applicant’s photo had been substituted.
Nor does the Tribunal consider that the ability of the applicant’s father and several elderly female relatives to remain living in Jaffna, apparently largely undisturbed, to be indicative of the risk to the applicant in this case. The applicant’s father has long been known to the Sri Lankan authorities as a former LTTE combatant and supporter, he was detained and interrogated for several weeks towards the end of the war and spent months in an IDP camp under the protection of the ICRC. His wife and sister-in-law disappeared in the last years of the conflict, believed killed by the SLA in retaliation for the family’s involvement. His brother and two of his wife’s siblings were killed fighting for the LTTE, with other family members fleeing overseas. In that sense the applicant’s father is one of the overwhelming majority of former LTTE members referred to in the DFAT report who have already come to the attention of the authorities and been through the processes put in place to deal with such persons at the end of the war.
DFAT reports that while the LTTE was comprehensively defeated in 2009, the Sri Lankan authorities remain concerned about any potential re-emergence of the LTTE and separatist Tamil tendencies in general.[29] The applicant’s elderly female relatives, particularly his grandmother, are among many women continuing to publicly protest and seek information from the Sri Lankan authorities about the whereabouts of their missing relatives. The Tribunal accepts as logical the applicant’s evidence that the Sri Lankan authorities perceive these elderly women differently from young Tamils who join those protests, particularly when they are male and come from a family with a high level of historical involvement with the LTTE such as that of the applicant.
Illegal departure from Sri Lanka
[29] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [3.41]
As set out above, the applicant departed Sri Lanka and arrived in Australia on a photo substituted passport issued under a false identity which has been seized by the Australian Federal Police. As the applicant is not in possession of a valid passport he will require a temporary travel document in order to be deported to Sri Lanka. DFAT reports that returnees travelling on a temporary travel document will be subjected to an investigative process by police to confirm their identity. DFAT reports this often involves interviewing the returning passenger, contacting police in their home area as well as neighbours and family and checking criminal and court records.[30] The Tribunal considers that these investigative processes will identify the applicant as a person with extensive family links to the LTTE who was known to participate in missing persons protests in Jaffna and surrounds and who was of adverse interest to the authorities when he departed the country in July 2023. He will also be identified as a person who left Sri Lanka illegally on a false passport.
[30] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [5.20]
As reported by DFAT, such an illegal departure is an offence under the Immigrants and Emigrants Act, with returnees being charged and required to attend court where they face potential penalties including imprisonment of up to 5 years and a fine, although DFAT states it is not aware of a prison sentence being given merely for illegal departure by itself.[31]
[31] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [5.21]–[5.22]
In such circumstances the Tribunal considers there to be a real chance the applicant will be detained at the airport and that detention may be prolonged while the authorities consider what charges if any may be laid against him. Even if the applicant is not immediately detained at the airport and is allowed to return to his home area of Jaffna in Sri Lanka’s Northern Province, the Tribunal considers there to be a real chance he will face ongoing harassment and detention in Jaffna for reasons of his involvement in missing persons protests and his family’s close involvement in the LTTE during the war.
It is common ground among international observers that persons detained in Sri Lanka face the prospect of a range of harms, including torture, long periods on remand awaiting trial and poor prison conditions. DFAT reports that the HRCSL states that torture is routinely used by Sri Lanka’s authorities and ‘practised all over the country, mainly in relation to police detention’. It also cites the International Truth and Justice Project who alleged 76 cases of torture between 2015 and 2017 involving Tamils suspected of LTTE involvement. DFAT reports that it was informed by multiple sources that police routinely mistreat suspects during criminal investigations and that the HRCSL received hundreds of complaints of torture annually, chiefly by police. Overall DFAT assesses that Sri Lankans detained by the authorities face a moderate risk of torture and identifies those who challenge the government as particularly at risk.[32]
[32] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at [4.11]–[4.18]
Similarly the UK Upper Tribunal recently found that there is a reasonable likelihood that those detained by the Sri Lankan authorities will be subjected to persecutory treatment.[33] This is consistent with the US Department of State’s report that human rights and civil society organisations allege that torture and the excessive use of force by police remain endemic; that the National Police Commission received approximately 1,200 complaints in 2022 and the HRCSL documented 291 complaints of torture in 2022.[34]
[33] KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC)
[34] US Department of State 2022 Country Reports on Human Rights Practices: Sri Lanka at Sri Lanka - United States Department of State
The applicant fears harm for reasons of his political opinion, his Tamil ethnicity and Hindu religion, his membership of the particular social group comprising his family and as a person who departed Sri Lanka illegally and has claimed asylum in the west. While those are all important elements of the applicant’s profile, the Tribunal considers they each have their genesis in his Tamil ethnicity and political opinion.
The Tribunal is satisfied there is a real chance that the applicant will face harm from the Sri Lankan authorities if he returns to Sri Lanka, now or in the foreseeable future. As the perpetrator of that harm is the state of Sri Lanka, the Tribunal finds the real chance of persecution relates to all areas of Sri Lanka. Therefore he meets the criteria set out in s 5J(1)(a), s 5J(1)(b) and s 5J(1)(c).
The Tribunal finds that the essential and significant reasons for the feared harm are the applicant’s political opinion and Tamil ethnicity. The feared harm involves threats to his life or liberty and significant physical harassment or ill-treatment and is of a severity that rises to the level of serious harm as set out in s 5J(5). That harm is systematic and discriminatory and intentionally targeted at the applicant. Therefore he meets the criteria set out in s 5J(4)(a), s 5J(4)(b) and s 5J(4)(c).
As the perpetrators of the harm is the state of Sri Lanka, the Tribunal finds that effective state protection will not be available to him and he is not excluded from having a well-founded fear of persecution by operation of s 5J(2).
The Tribunal accepts that the applicant’s political opinion is fundamental to his identity and conscience, as a Tamil and as a person whose mother disappeared during the war, and he cannot be required to modify his behaviour pursuant. His Tamil ethnicity is an innate and immutable characteristic, and he cannot be required to alter or conceal it. Therefore he is not excluded from having a well-founded fear of persecution by operation of s 5J(3).
There is no suggestion the applicant has a right to enter or reside in any third country and therefore he is not excluded from Australia’s protection obligations by s 36(3).
For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution if he returns to Sri Lanka for the combined reasons of his political opinion and Tamil ethnicity. It follows that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he satisfies the criterion set out in s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
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 4826

6 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction