2505372 (Refugee)

Case [2025] ARTA 1447

2505372 (Refugee) [2025] ARTA 1447 (18 March 2025)

Decision and
Reasons for Decision

Respondent:

Minister for Immigration and Multicultural Affairs

Tribunal Number:

2505372

Tribunal:

General Member F Robertson

Date:

18 March 2025

Place:

Perth

Decision:

The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth)

Statement made on 18 March 2025 at 7:13am

CATCHWORDS

REFUGEE – Protection Visa – Sri Lanka – feared harm from his father and from his father's enemies – father's general alcoholism and tendency towards violence – suffered domestic violence from father – bisexuality – threats from a money lender – long history of severe and persistent mental illness – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons

INTRODUCTION

  1. This is an application for review of a decision to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

  2. The applicant is a [age]-year-old male who is a national of Sri Lanka. The applicant first arrived in Australia in 2019 as the holder of a student visa. The applicant applied for a protection visa in June 2024. The application was refused by a delegate of the Minister for Home Affairs in February 2025.

  3. The applicant has applied for review of that decision. The application was heard on 17 March 2025. Following that hearing, I have determined that the review application succeeds on the basis that the applicant satisfies s 36(2)(a) of the Act. These are my reasons.

    CRITERIA FOR THE GRANT OF A PROTECTION VISA

  4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa).

    Refugee criterion

  5. Section 36(2)(a) of the Act 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 decision‑maker 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…

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AGLC
2505372 (Refugee) [2025] ARTA 1447
Case
[2025] ARTA 1447
Decision Date

CaseChat Overview and Summary

The applicant, a Sri Lankan national, challenged the decision of a delegate of the Minister for Home Affairs, who declined to grant the applicant a protection visa. The applicant claimed that he feared harm from his father, who was involved in criminal activities, and from his father's enemies. The applicant also claimed that returning to Sri Lanka would adversely affect his mental health, leaving him unable to subsist. The central legal issues were whether the applicant had a well-founded fear of persecution and whether there was a real risk of significant harm if he were to return to Sri Lanka.

The court reviewed the decision under the Migration Act 1958 (Cth), focusing on the definition of a 'well-founded fear of persecution' and the 'real risk' of significant harm. The court noted that the applicant's claims included fear of harm from his father and father's enemies, threats from a money lender, persecution due to bisexuality, and difficulties arising from mental health conditions. The delegate had considered the applicant's claims but found them unconvincing due to inconsistencies and lack of evidence. The delegate also rejected the claim of a debt to a money lender and the credibility of the allegations of domestic violence and bisexuality. While acknowledging the limitations of mental health care in Sri Lanka, the delegate found that mental health services were available and accessible, particularly in Colombo.

The court found that the delegate had not properly considered the totality of the applicant's claims and the evidence provided. The court held that the applicant had a well-founded fear of persecution due to his mental health, the threats from his father and the money lender, and the persecution he would face due to his bisexuality. The court found that the delegate had erred in rejecting the applicant's claims and remitted the matter back to the delegate for reconsideration. The court did not make final orders but directed that the decision be reviewed in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.BACKGROUND The applicant was born in [year] in Colombo, Sri Lanka.Protection visa application The applicant's protection visa application was prepared with the assistance of a solicitor. The application claimed that the applicant feared harm from his father and from his father's enemies. The applicant claimed that his father had enemies from his time spent as a [Occupation 1]. The applicant also claimed that returning to Sri Lanka would adversely affect his mental health and leave him unable to subsist. The claimed reason for the harm feared from the applicant's father was cumulative, citing the applicant's mental health, the failure of his studies and associated 'wastage' of his father's funds and also his father's general alcoholism and tendency towards violence. The protection visa application otherwise indicated that: '[a]pplicant has been convicted of sexual harassment, threat to kill, and possession of weapon without excuse' and that the applicant had been imprisoned for a three-month period in early 2024. A number of documents were provided in support of the protection visa application. Among them was a report from Ms [A], a psychologist, dated 25 March 2024 that was prepared for the purposes of the applicant being sentenced in 2024 ('[Report 1]'). The [Report 1] is detailed and provides an account of the applicant's antecedent history, particularly as it relates to his mental health. Regrettably, [Ms A] was wrongly instructed, by the applicant's then solicitor, that the applicant first came to Australia in 2022. That fact was incorrect. The applicant first came to Australia in 2019. [Ms A] comments on the applicant's claims to have first arrived in Australia in 2019. However, having had the opportunity to read that report I am satisfied that notwithstanding the error in the instruction provided to [Ms A] the report is still deserving of significant weight. In any event, the applicant was interviewed in respect of his claims. I have listened to that interview. As a result of that interview, new claims were raised that were then expanded upon in post hearing submissions. Those claims related to the applicant's sexual orientation and harm feared related to money that was allegedly borrowed. Following the interview, the applicant was provided with additional time to provide further evidence in support of his claims. No further evidence was provided in support of the claims.[10][10] The evidence that would have been provided has been provided to the Tribunal. It is submitted that this information was provided to the applicant's solicitor (who was not the solicitor who appeared at the hearing of the review application) but that the documentation was not submitted through an oversight.Delegate's decision

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Following the interview, the applicant was provided with additional time to provide further evidence in support of his claims. No further evidence was provided in support of the claims.[10][10] The evidence that would have been provided has been provided to the Tribunal. It is submitted that this information was provided to the applicant's solicitor (who was not the solicitor who appeared at the hearing of the review application) but that the documentation was not submitted through an oversight.Delegate's decision The delegate identified the applicant as having claimed to fear harm from criminal figures due to their father’s employment as a [Occupation 1], violence from his father, persecution due to their bisexuality, threats from a money lender, and difficulties arising from their mental health conditions. The applicant stated that their father, a [Occupation 1], shot a criminal, prompting the family to relocate from Colombo to [a city]. They claimed that the fear of gang violence prevents them from working in [an] industry in Colombo. They also alleged that they suffered domestic violence from their father, who they described as strict and violent throughout their childhood. Further, the applicant stated that they had borrowed three million Sri Lankan rupees in 2021 to fund their education in Australia, with a remaining debt of five million rupees due to interest. They claimed that both they and their mother had received death threats from a money lender. Additionally, they asserted that they are bisexual and fear persecution in Sri Lanka due to the legal and social stigma associated with their sexual orientation. The applicant also claimed to suffer from obsessive-compulsive disorder, schizophrenia, psychosis, and suicidal ideation. They provided medical reports in support of their mental health issues and asserted that they would be unable to access adequate treatment in Sri Lanka. The delegate accepted that the applicant’s parents were [Occupation 1]s, and that the applicant suffers from mental health conditions, including OCD, schizophrenia, psychosis, and suicidal ideation. However, the delegate found that the applicant’s claim of fear of harm from criminal elements in Colombo was not credible due to inconsistencies in his account and a lack of evidence of any threats since the family relocated in 1998. The delegate also rejected the claim of an outstanding debt to a money lender due to an absence of supporting documentation. The claim of bisexuality was not accepted as being credible with the delegate noting it was raised late and was found to have been raised 'for the purpose of sur place claims'. The allegations of domestic violence were also rejected, as the applicant’s past interactions with their father, including a recent extended stay in Sri Lanka, did not align with claimed fear of harm. Whilst acknowledging limitations in Sri Lanka’s mental health care system, the delegate found that mental health services were available and accessible, particularly in Colombo. The delegate concluded that the applicant did not face a real risk of significant harm due to his mental health condition upon return to Sri Lanka.

Ratio Decidendi

Legal Principle Established

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.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4][2] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[3] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b). [4] Migration Act 1958 (Cth), s 5J(4)(c). A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6] [5] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[6] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.Complementary protection criterion A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7][7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ). The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9][8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.BACKGROUND The applicant was born in [year] in Colombo, Sri Lanka.Protection visa application The applicant's protection visa application was prepared with the assistance of a solicitor. The application claimed that the applicant feared harm from his father and from his father's enemies. The applicant claimed that his father had enemies from his time spent as a [Occupation 1]. The applicant also claimed that returning to Sri Lanka would adversely affect his mental health and leave him unable to subsist. The claimed reason for the harm feared from the applicant's father was cumulative, citing the applicant's mental health, the failure of his studies and associated 'wastage' of his father's funds and also his father's general alcoholism and tendency towards violence.