1310061 (Refugee)

[2015] AATA 3748

1310061 (Refugee) [2015] AATA 3748 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1310061

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:30 November 2015

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 30 November 2015 at 1:35pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2013.

3. The applicant appeared before the Tribunal on 11 December 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. The Tribunal notes that on 8 July 2015 this case was reconstituted to a different Member. In finalising the decision the Member has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.422(3) of the Migration Act 1958.

6. The issues in this review are whether the applicant will face a real chance of persecution or a real risk of significant harm on return to Sri Lanka on account of his Tamil ethnicity, his political opinion, membership of particular social groups, illegal departure, and/or as a failed asylum seeker. A summary of the relevant law is attached. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and Country of Nationality

8. It is not in dispute that the applicant is a Sri Lankan national and the delegate’s decision records that he has provided to the Department copies of his passport, marriage certificate, household registration, birth certificate, National Identity Card (NIC) and documents relating to his time in an Internally Displaced Persons (IDP) camp. The Tribunal is satisfied that the applicant is a national of Sri Lanka and has assessed his claims accordingly. 

9. The applicant is a [age] Tamil man from [Town 1], Trincomalee district in Sri Lanka’s east.  He is married with [children].  His wife, children, mother, [and siblings] live in [Town 1].  [Other siblings] live in the Vanni and another [sibling] lives in Batticaloa district. 

10. The applicant was born in [Town 1], Trincomalee, and resided there until September 1990 when he moved to Jaffna district.  He lived in Jaffna until March 1996 when he moved to [town], Northern Province.  In April 2009 the applicant was taken to an IDP camp in Vavuniya district and from there moved to an IDP camp in Trincomalee until October 2009.  From there he returned home, to [Town 1], Trincomalee.    

    Refugee assessment

11. The applicant fears he will be seriously harmed by the Sri Lankan authorities who suspect him of being involved with the Liberation Tigers of Tamil Eelam (LTTE) in the past if he returns to Sri Lanka now or in the reasonably foreseeable future.   

12. The applicant’s specific claims for protection are detailed in a statutory declaration he submitted to the Department dated 23 October 2012.  The applicant was interviewed by the Department in relation to his protection claims [in] April 2013, the key claims of which are set out in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review). The applicant provided more details and clarification about his background, specific protection claims, and reasons why he fears returning to Sri Lanka at the Tribunal hearing, considered in more detail below.  Also provided was a number of written submissions[1] by the applicant’s representative and supporting documents. 

    Past mistreatment by the Sri Lankan authorities

    [1] Dated 2 October 2013, 2 December 2014,  23 December 2014, and 5 February 2015

13. The applicant told the Tribunal that he experienced questioning, harassment, and physical harm from the army on many occasions in the past in Sri Lanka, who were suspicious because he had lived in an area controlled by the LTTE for a long period and because he was shot, with a bullet remaining, located near his spine.

14. The applicant said he was shot whilst having a shower at night at a well [in] April 2009 about 1.5 kilometres away from where the army were staying. He does not think he was specifically targeted, however he noted that the army knew the well was used by civilians.  He went to the hospital and the ICRC took him to [location] by ship, where he stayed for two weeks before being taken to [location] IDP camp in Vavuniya where he stayed (with his family) until mid-2009.  At that camp the applicant said he was questioned by army intelligence a number of times and beaten on his ears.  The main question they asked was where, when and how he got injured.  He said he was treated like a slave in that camp, and only given a small amount of water per day.  In his statutory declaration provided to the Department the applicant said during this time he was stripped searched three times by the army, who saw the scars on his back.  At hearing the applicant said he was taken to the IDP camp before his injuries had healed. 

15. The applicant said he was then taken to another IDP camp in Trincomalee where he stayed until [date] October 2009. There he was questioned by the army, police, navy and air force separately, about where he had lived, his occupation and in particular his injury.  They took photographs of the applicant and his family.  He was not physically harmed during this period, although noted that their manner of speech and tone was threatening. 

16. The applicant said he was questioned further on return to [Town 1] from October 2009.  Specifically the navy came to his house and questioned him [in] October 2009 about where he was from, what he did and so on.  Then [in] October 2009 army personnel came to the applicant’s house and told him to report to the army camp the following day, which the applicant did.  At the camp he was questioned for around five hours by two intelligence officers.  They took him to a room, removed his shirt, and asked to show them the spot where his bullet is located.  They also enquired about the scar under his armpit, where the surgeons made an incision to release the internal bleeding which resulted from his bullet wound.  They poked his injury, asked if he was an LTTE member, and recorded everything he said in a form.   The same army personnel returned to the applicant’s home [in] November 2009, and took him to the same camp where he underwent questioning along similar lines as the last time.  They also threatened to harm him if he did not tell them about LTTE members.  They let him go after two to three hours.  [In] December 2009 the army visited the applicant’s home again, asked what he was doing, whether anyone visited his house, and who he spoke to over the telephone.  After that the applicant said the army came “continuously” - that is at least once or twice every month, the last time in April 2012.  Because the security forces visited ‘continuously’ and were watching him, the applicant felt they suspected him (of being linked to the LTTE) and he decided to leave Sri Lanka.  (The applicant left [Town 1] to come to Australia [in] May 2012).

17. The applicant told the Tribunal that he was also afraid to stay in Sri Lanka after three people from his neighbouring village were taken by the army shortly before he left Sri Lanka.  He does not know why they were taken specifically, but noted that they had come from the Vanni and had been resettled to their area after the war. 

18. The applicant told the Tribunal the reason he left Trincomalee initially in 1990 was because he was caught by the army, had his hands tied behind his back, and was beaten. The army also took some people during that time, who remain missing.  In his statutory declaration to the Department the applicant states that his wife’s uncle was also taken and they have never heard from him again.  The applicant said in his statutory declaration that he then moved to Jaffna until October 1995, when the army captured Jaffna.  The applicant said he lived in the Vanni – which was controlled by the LTTE – from March 1996 until he was shot.  He said the army often asked him about his time in the Vanni when they questioned him subsequently.  Specifically they asked what he did there, what his connection with the LTTE was, and whether he was injured when he was with the LTTE.   They also asked the applicant about his associates. 

19. In his statutory declaration provided to the Department the applicant states the last time the army came and questioned him was [in] April 2012.

20. The applicant said that in April 2014 – after his departure from Sri Lanka – the same army personnel saw his wife in Trincomalee, asked about the applicant’s whereabouts and if he was sending any money and to provide her bank details. She gave them her bank book and told them her husband was in Australia. 

21. The Tribunal accepts the applicant’s history of problems he experienced at the hands of the army in Sri Lanka, dating back to 1990 when he was beaten which precipitated his departure from his home area.  It accepts that he was shot by the army in early 2009, and that thereafter he experienced regularly questioning and harassment from the army and other security force members until he departed Sri Lanka in May 2012, both when he was at IDP camps following the war and when he returned to his home area in [Town 1], Trincomalee.  It accepts his claims to have been beaten by the army in the past.  The applicant’s oral evidence to the Tribunal was cogent, detailed and spontaneous and was reasonably consistent with his written claims to the Department.

22. Accordingly, the Tribunal accepts that the applicant was questioned, harassed, and on occasion threatened and beaten by the Sri Lankan authorities in the past, the last time in April 2012 before his departure from the country in May that year.  It accepts that these incidences involved serious harm and the imputation of a pro-LTTE political opinion.

    Fear of persecution in the reasonably foreseeable future 

23. The representative submits that the applicant has a well-founded fear of persecution on return to Sri Lanka for a number of Convention reasons, including his Tamil race, imputed political opinion (support of the LTTE and opposition to the government), political opinion in support of the Illankai Tamil Arasu Kadchi (ITAK), and membership of particular social groups (‘Tamils who have resided in the Vanni’ and ‘failed asylum seekers returning to Sri Lanka’).  For reasons outlined below the Tribunal finds that the applicant faces a real chance of persecution on account of his imputed political opinion on return to Sri Lanka and whilst some of the grounds overlap, it has not been necessary to specifically consider his claims on other grounds.

24. The Tribunal has accepted that the applicant has experienced serious harm, questioning and harassment from the security forces in the past in Sri Lanka, the last time in April 2012.  It accepts that he has been shot by the army in April 2009 – purportedly by accident – but nonetheless the bullet remains near [a body part].  The Tribunal notes that medical evidence[2]  has been provided which confirms the presence of a bullet in the applicant’s left [body].  The Tribunal accepts that the presence of a bullet has piqued the authorities suspicion of the applicant being an (LTTE) combatant (even though the applicant claims that he was not an LTTE combatant) and, combined with other factors such as his time residing in the Vanni, resulted in intense monitoring and questioning – more than monthly – from late 2009 until the applicant’s departure from Sri Lanka.  Accordingly the Tribunal accepts that the army targeted and seriously harmed the applicant in the past in Sri Lanka because they suspected him of being an LTTE supporter. 

    [2] Numerous x-rays; a report from [doctor] dated [in] August 2012; a report from [doctor] dated [in] August 2012; a report from radiologist [doctor] dated [in] February 2012; a report from senior physiotherapist [name] dated [in] April 2013; and a report by [doctor] dated [in] January 2015

25. Nonetheless the Tribunal notes that the situation in Sri Lanka – including for Tamils from areas previously controlled by the LTTE – has changed dramatically since the end of the war in May 2009 and the immediate post-war period.  The Tribunal also notes its concern that if the authorities considered the applicant was a serious concern in terms of his LTTE links and/or role during the period of questioning after the war, they would have either arrested him or possibly (more) seriously harmed him at that time.  At hearing the applicant said they watched him, restricted him and put him under pressure.  He said it was usually the same army personnel who questioned him.  If he talked to someone over the phone, or relatives or others visited, they would ask who that person was.  

26. Despite these concerns, for the following reasons (and considered on a cumulative basis), the Tribunal is of the view that the applicant faces a real risk of being seriously harmed on return by the authorities for reasons of his imputed political opinion.  The Tribunal, having regard to Australia’s Department of Foreign Affairs and Trade’s (DFAT) most recent advice about the treatment of returnees who departed Sri Lanka illegally[3], considers that it is likely the applicant will be questioned on return and during that standard questioning at the airport there is a risk – which the Tribunal considers is more than remote – that the applicant’s history of ill-treatment by the authorities on account of being an LTTE suspect, combined with physical evidence of being shot during the war, will result in him being perceived to have an association with the LTTE which may cause him to be targeted by the authorities.  Country information (discussed further below) indicates that whilst the situation has improved dramatically since the end of the war, it is not out of the question that he could attract the adverse attention of the authorities during this process.  In such a context his history as a suspected LTTE supporter would manifest and, in the Tribunal’s view, makes the chance for further mistreatment for reasons of his imputed political opinion become real.  At hearing, when discussed what might happen to him on return because of his illegal departure from Sri Lanka, the applicant said if he is beaten at the place where his bullet is lodged, there is a risk he will lose all sensation. Based on the medical reports provided, the Tribunal accepts this risk exists.

    [3] DFAT Country Report Sri Lanka, 16 February 2015 at 5.22 – 5.29

27. For these reasons, and when considering all aspects of the applicant’s case, including his particular vulnerabilities and other factors discussed above, the Tribunal accepts that there is a real chance the applicant would be seriously harmed by the authorities on return to Sri Lanka on account of his imputed political opinion.  

28. In reaching this conclusion the Tribunal has had regard to the United Kingdom, Upper Tribunal’s country guidance determination on cases from Sri Lanka which stated in part that the Sri Lankan government’s current focus is on preventing both a resurgence of the LTTE or any similar Tamil separatist organisation and the revival of the civil war within Sri Lanka,[4] (also referenced in the representative’s submission to the Tribunal).  Of relevance to this case, the Upper Tribunal found that: If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.[5] The Tribunal also notes that the UNHCR confirms that detainees suspected of links to the LTTE are subject to mistreatment and torture.[6]

    [4] GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC)

    [5] Ibid

    [6] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, December 2012

29. The Tribunal also notes the following statement in DFAT’s July 2013 report on Sri Lanka:

    In practice, there are reports that Sri Lankan citizens of all ethnic groups have been tortured and/or abused by the Sri Lankan police and security forces. This includes reports of torture resulting in death. Such allegations come from a wide range of actors, including political activists, suspects being investigated for criminal offences and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections.[7]

    [7] DFAT, Country Information Report: Sri Lanka, 31 July 2013

30. The Tribunal notes in the most recent DFAT advice it states that it is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka, many of which have been made anonymously by third parties making verification difficult.  In making this assessment DFAT notes the thousands of asylum seekers returned to Sri Lanka since 2009 including from Australia, the US, Canada, UK and other European countries and assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the I&E Act.[8]  Whilst acknowledging DFAT’s assessment that the risk of torture or mistreatment for the “great majority of returnees is low,” the Tribunal is of the view that the applicant does not necessarily fall within this category, given what it accepts of his past experience in Sri Lanka at the hands of the authorities, the level and intensity of their monitoring and questioning over a sustained period of time leading to his departure, (and interest in the applicant as recently as 2014 when they enquired about this whereabouts with his wife) and the presence of a bullet lodged in his spine and scars associated with that injury, which in and of itself may arouse suspicion about the applicant’s role during the war.

    [8] DFAT, Country Information Report for Sri Lanka, 16 February 2015 at 4.20-4.21

31. Taking into account this country information, as well as what the Tribunal accepts of the applicant’s past history of serious harm experienced at the hands of the Sri Lankan authorities, and his particular vulnerabilities including the fact that he has a bullet lodged in his spine, the Tribunal finds that there is a real chance that the applicant would suffer serious harm at the hands of the authorities on return to Sri Lanka in the reasonably foreseeable future.  Further, the Tribunal finds that such serious harm would involve systematic and discriminatory conduct and would be for the essential and significant reason of the applicant’s imputed political opinion.  Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason.

32. The Tribunal finds that the threat which the applicant would face on return to Sri Lanka comes from the authorities themselves. Therefore, the Tribunal finds that state protection from this threat in accordance with international standards would not be available to the applicant in Sri Lanka.

33. With respect to whether or not the applicant could relocate internally within Sri Lanka to avoid the harm he fears, the Tribunal notes that the perpetrators he fears are the authorities, who exist nationally.  Therefore internal relocation is not an option in the applicant’s case.

1. For reasons set out above the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his imputed political opinion, should he return to Sri Lanka now or in the reasonably foreseeable future.

2. Given the Tribunal’s findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.    

   CONCLUSION

3. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

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

   Nicole Burns
   Member

   
   

   Attachment – Summary of Relevant Law

   The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   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 a protection 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 the applicant 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’).

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.