1310216 (Refugee)

[2015] AATA 3140

1310216 (Refugee) [2015] AATA 3140 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1310216

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rea Hearn Mackinnon

DATE:2 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 July 2015 at 5:45pm

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 4 March 2015 and 19 May 2015 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. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

   CLAIMS

9. The applicant claims to fear harm in Sri Lanka because of his Tamil race, as a Tamil fishermen, as a failed asylum seeker, because he left Sri Lanka illegally having been previously arrested for planning to leave illegally; and because of an imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE).  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

10. The applicant claims, and the Tribunal accepts, that he was born on [date] in [Town 1] in the North-West Province of Sri Lanka. He is a Tamil and Hindu religion. He is not married. His parents and [siblings] are residing in Sri Lanka. He worked as a fisherman in [Town 1] and in Trincomlee on the east coast of Sri Lanka on his [relative]’s boat. He left Sri Lanka [in] June 2012 and arrived in Australia in July 2012.

    The applicant has provided some identity documents, including a copy of his passport and national identity card. The applicant’s name was initially recorded as [Name 2] but his name in his passport is [Name 3]. The applicant indicated that [Name 2 and Name 3] are different spellings or expressions of the same name and that the difference may be due to the particular interpreter or whether the name has been translated from Sinhala or Tamil. The Tribunal accepts this explanation and accepts that the applicant is a national of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality and his receiving country.

    Tamil fisherman

11. The applicant was a fisherman in Sri Lanka. He claimed that he was not able to fish because he had to obtain a permit from the Navy.  He told the Tribunal that he fished on his [relative]’s boat in [Town 1] and in Trincomlee and that he needed a pass from the Navy. Country information indicates that the Navy was involved in issuing fishing passes during the conflict and in the immediate aftermath but that the Department of Fisheries has been solely responsible for issuing passes since at least 2012.[1] The Tribunal is satisfied that, even if the applicant had past problems with the Navy, Tamil fishermen are no longer required to obtain fishing passes or permits from the Navy and the Tribunal therefore does not accept that the applicant will be prevented from fishing because he has to obtain a pass from the Navy.

    [1] DIAC Country Information Service 2012, Country Information Report No 12/67 – CIS Request Sri Lanka Lanka: Questions arising from recent applications (sourced from DFAT advice of 29 November 2012), 29 November

12. The applicant claims that the Navy made him do unpaid manual labour around the camp in return for a permit around 15 days a month. He told the Tribunal that the Navy made him cut grass, clear bushes, carry roof sheets and make fences at the Navy camp a few times in [Town 1] and many times in Trincomlee. He stated that he couldn’t say exactly when this occurred as it was too long ago then stated that it occurred up until a few weeks before he left Sri Lanka. When asked how often, he stated that it was a few times a week for about 5-6 hours at a time and that about 7-15 other fishermen also had to do such work.  He stated that he never complained to anyone about this forced labour as there was no-one to complain to.

13. The Tribunal accepts that the applicant and other fishermen may have undertaken some unpaid work at Navy camps in the past (as per his evidence that it was too long ago to remember exactly). The Tribunal does not accept that the applicant was forced to work for 5-6 hours several times a week or 15 times a month up until a few weeks before he left Sri Lanka.  The information before the Tribunal does not indicate that fishermen have been being forced to do unpaid labour for the Navy. The Tribunal has previously considered this issue and found no reference to forced labour in the country reports. Whilst the Tribunal accepts that the absence of reports is not necessarily determinative, the Tribunal notes that there has been extensive reporting on the circumstances of Tamil fishermen including in relation to fishing permits and licences, fishing zones and restrictions, competition with Sinhalese fishermen and economic issues and considers that there would be reports of forced labour if it was occurring. The Tribunal therefore does not accept that the applicant will be forced to perform hours of unpaid labour several times a week at the Navy camp on return to Sri Lanka.

    Imputed support of LTTE

14. The applicant stated that he will be imputed to be an LTTE supporter because of his race and because he applied for asylum in Australia, having previously attempted to leave.

15. The Tribunal does not accept that the applicant will be imputed to be an LTTE supporter now because of his race. The Tribunal notes that the applicant has had no actual involvement with the LTTE and is not from a formerly LTTE controlled area.  The Tribunal also notes that the applicant was not arrested or detained at the end of the conflict in 2009 when any association with the LTTE was reportedly grounds for arrest[2] and when about 11,000 suspected LTTE operatives and supporters were detained,[3] indicating that he was not previously suspected of any LTTE association.

    [2] Department of Foreign Affairs and Trade, 2014, DFAT Thematic report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October

    [3] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

16. In 2012, the UNHCR advised that Tamils from the north, where the LTTE were active, are no longer presumed to be in need of protection based on their race and that the profile of persons perceived now to have links with the LTTE include persons who held a senior position with the LTTE; former combatants; former combatants who were employed in the administration, intelligence, IT or media units of the LTTE; former supporters who were involved in sheltering or transporting personnel or transporting supplies; fundraisers and propaganda activists including those with links to the diaspora which has funded or supported the LTTE; and persons with family links or who are dependent on persons with the above profiles.[4]

    [4] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 

17. The Tribunal is satisfied that the applicant does not fall within any of these profiles and does not have any other profile which would cause him to be perceived as having an association with the LTTE on return to Sri Lanka.

18. The country information set out below in relation to returnees does not indicate that returnees to Sri Lanka are being imputed with an LTTE association just because they travelled to Australia and applied for asylum. In fact the media has reported that many fishermen from [Town 1] have travelled to Australia because of the difficult economic circumstances they are currently facing in Sri Lanka.[5] Accordingly, the Tribunal does not accept that the applicant will be imputed with an LTTE association because he applied for asylum in Australia.

    [5]

    Tamil race

19. The applicant stated that the Sri Lankan authorities persecute Tamils; that Tamils have to get permission to live in a different part of Sri Lanka and to travel overseas.  It was submitted that he will face systematic persecution by the Sri Lankan state and affiliated paramilitary groups. The applicant has not claimed to have suffered any specific harm related to his race in the past.

20. The Tribunal discussed country information provided by the Department of Foreign Affairs and Trade (DFAT) with the applicant which indicates that the security situation in Sri Lanka is much improved since 2009; that the monitoring and harassment of Tamils in the north has eased since the end of the conflict; and that fewer Tamils are being detained under the Prevention of Terrorism Act. There is freedom of movement in Sri Lanka and DFAT has advised that the forced registration of Tamils has ceased indicating an easing of the monitoring of Tamils which occurred during the conflict. The Tamil National Alliance holds the majority of seats in the Northern Provincial Council; a civilian governor was recently appointed in the north to reduce the role of the military in civilian affairs; and that President Siresena has established a Special Presidential Taskforce on Reconciliation to “heal the wounds of mistrust and social and cultural stress generated from extended conflicts and violence between different communities in Sri Lanka”. [6] The Tribunal accepts that Tamils in Sri Lanka have suffered harassment and discrimination related to the years of conflict but considers that the developments described in the country information above overall indicate an improving situation. In view of this information, the Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if returned to Sri Lanka because of his race.

    [6] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

    Failed asylum seeker/Returnee

    5.24Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.

    5.25During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

    5.26For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.[7]

    [7] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

21. In 2012, DFAT reported that:

    R.2. Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

    We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they have facilitated.

    We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report "Sri Lankan Tamils tortured on return from the UK" [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:

    "We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture".

    "On 16 August FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UKBA have written to them since and received no response" and are due to meet Freedom from Torture again in November”.

    We are also aware of a story on Tamil Net [CX299934] claiming a Tamil British national visiting Sri Lanka was detained by the CID in Colombo from 3 to 9 October and "allegedly tortured under suspicion of LTTE links". The article claims the person was released after a ransom was paid to CID. AFP at post has followed up on the claim with the Sri Lanka Police CID (including with the officer named in the story) who have categorically denied the allegation.[8]

    [8] CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012

22. In its recent country report, DFAT noted that it is aware of a small number of allegations of torture or mistreatment by returnees and that verifying these allegations is difficult because they have been made anonymously and to third parties. DFAT also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment and “assesses the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act”.[9]

    [9] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

23. For the reasons set out above, the Tribunal does not accept that the applicant will be imputed with an LTTE association on return to Sri Lanka. The Tribunal places weight on the DFAT advice above that there have not been any reports of mistreatment of returnees from Australia. The Tribunal is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures outlined by DFAT above and does not accept that the applicant will be harmed at the airport or on return to Uduppu because he is a returnee from Australia or a failed asylum seeker.

    Prior illegal departure

24. The applicant departed Sri Lanka illegally. Illegal departure from Sri Lanka is an offence under the Immigrants and Emigrants Act 1945 and DFAT has advised that persons who have departed Sri Lanka irregularly, by boat, are being charged under that Act. The applicant also claims that he was previously arrested for trying to depart Sri Lanka illegally and that he will therefore suffer greater punishment on return and may be held in custody for an extended period.

    Previous arrest for planning to leave Sri Lanka illegally

25. The applicant told the Tribunal that he was arrested in a temple in [Town 4], (about [distance]km inland from [Town 1]). He stated that he and [other] friends had hired a van and travelled to the temple for an outing; and that the CID arrested them when they were in the temple. He learnt later that other young men have used the temple to make arrangements to travel to Australia and that previous arrests have occurred. The CID drove him and his friends for about 45 minutes or an hour, to a coastal [town] and held them in a hall with 2 rooms which they were told was a CID place.  About 110 young men were being held there. The CID asked him and his friends if they were planning to go to Australia, when they were going and the name of their agent. He had not made any plans to travel to Australia at that time and only learnt of the opportunity to go to Australia at that time. He and the other young men were able to ring their parents and his mother and [sibling] came and signed a guarantee for his release.

1. The applicant claims he was charged with planning to leave Sri Lanka illegally. He stated that he and the other young men were taken to court and signed out but he couldn’t remember the date. He stated that he was held at the CID place for four days and taken to court on the fifth day and released. He appeared in court again once, possibly twice. He couldn’t remember the date but stated that it was about two and a half months after he was arrested and about four or five months before he left Sri Lanka. His mother and [sibling] have had to appear in court since he left Sri Lanka because they gave a personal guarantee. The court has issued an arrest warrant for him. 

2. The applicant subsequently provided a number of documents in support of this claim. These documents and the claim are discussed below.

   (a)Information to the Magistrate

3. The applicant provided a (translated) application to [a] Magistrate’s Court entitled Information to the Magistrate in a matter with an illegible case number but could be [number]. The document has gaps and is difficult to understand but indicates that:

   ·    it is a report of [a named official];

   ·    [Persons] named in the document were arrested in and around Colombo, Negombo and [Town 5] in relation to conducting and coordinating the human smuggling of [people] to Australia by boat;

   ·    [Suspects] were arrested in and around Colombo, Negombo and [Town 5] including [passengers];

   ·    The [passengers] had paid more than [amount] rupees to the [persons] named in the report and were to pay a further [amount] rupees when they found employment in Australia;

   ·    The passengers were travelling in [vehicles] – all or part of the vehicle numbers are set out in the report;

   ·    The smuggler suspects named in the report will be remanded and the [passengers] will be produced in court and seek a suitable time to gain bail.

4. The document is not dated but bears a stamp stating [date] July 2013.

5. The Tribunal has received a reasonably detailed and comprehensive translation of an application to [a] Magistrates Court in case number [deleted] from a different source. According to this document:

   ·The complainant is [a named official];

   ·[Suspected] smuggler agents and [intended] passengers were arrested [in] May 2012 in Colombo, Negombo and [Town 5] areas;

   ·The suspected smuggler’s names listed in the application correspond to the names in the applicant’s document;

   ·The [suspected] passengers had each “given the sum of rupees [amount] lakhs or [amount] lakhs to these main suspects and promised to give the balance amount of rupees [amount] lakhs after entering Australia”;

   ·The passengers had paid the above amount into the suspected smugglers’ bank account;

   ·The passengers were in [vehicles] in the Colombo area when taken into custody. The vehicle numbers set out in the document correspond to the vehicle numbers in the applicant’s document;

   ·The smuggler suspects were “produced before the court today” with a request that they be remanded from [date] May 2012 to [date] June 2012; and the passengers were also “produced before the honourable court today” with a request for bail.

6. The content of the application to the [Magistrates] Court is consistent with media reports of the arrests which state that [people] were arrested in Colombo and Negombo; the men arrested were all from [Town 1] except for some of the facilitators; and that [many] were released on bail on May [date].[10]

   [10] [Information deleted].

7. The Tribunal accepts that the application to the [Magistrates] Court in proceedings number [deleted] is a genuine document and that [people] – [alleged] smugglers and [would be] passengers - were arrested in the Colombo, Negombo and [Town 5] districts [in] May 2012 and that the passengers were brought before the court [in] May 2012 and bailed.

8. The similarities in the content of the documents above indicate that they are translations of the same court document and relate to the same proceedings. The Tribunal is satisfied that the document entitled ‘Information to the Magistrate’ which the applicant provided relates to the same court proceedings as the application to the [Magistrates] Court in proceedings number [deleted]. 

9. The Tribunal put a number of issues and adverse information to the applicant relating to his of having been arrested and he provided a post hearing written response. The Tribunal has had regard to this response. The Tribunal does not accept that the applicant was arrested or charged however because of inconsistencies between his evidence about where and how he was arrested and the information contained in the application to the [Magistrates] Court which the Tribunal accepts is an accurate record of the circumstances of the arrest.

10. The applicant said he was arrested in a temple in [Town 4] however the would-be passengers were arrested in [specified] vehicles in the Colombo, Negombo and [Town 5] areas. The applicant submitted that [Town 4] is within the [Town 5] district so his place of arrest is not inconsistent with the where the arrests occurred however his evidence to have been arrested in the temple is inconsistent with the information that the passengers were arrested whilst in vans apparently on their way to depart Sri Lanka. 

11. The applicant stated that he had no knowledge about and no intention of travelling to Australia when he was arrested but the would-be passengers had all paid a significant amount of money for their journey. The applicant submitted that the court application is a generalised account of the circumstances of the arrests and not necessarily an accurate account of what occurred; and that the authorities assumed he had paid money to the smugglers. The Tribunal does not accept this submission. The Tribunal places weight on the application to the [Magistrates] Court and finds that those arrested had paid money to the smugglers for their travel to Australia and that the applicant’s evidence is inconsistent with this circumstance.

12. The applicant stated he was detained for 4 days but the court application indicates that the would-be passengers were bailed [in] May 2012, the day after they were arrested. The applicant submitted that the authorities may not have wished to disclose to the court that the passengers had been held for a longer period of detention in order to avoid scrutiny. The Tribunal does not accept that the application to the [Magistrates] Court has falsely stated the arrest date of the smugglers and passengers. Further, the media reports of the arrests (including the report provided by the applicant) also indicate that the arrests occurred [in] May and that the would-be passengers were bailed [the following day in] May.

13. The applicant claimed to have appeared before the court on one or possibly two occasions after he was bailed, two and a half months after his arrest and four or five months before he left Sri Lanka however this is not possible as the arrests occurred [in] May 2012 and the applicant left Sri Lanka in June 2012. The applicant submitted that he could not remember the date he appeared again in court or whether it was once or twice; that he gave “a vague possible answer” about the date of his re-appearance in deference to the Tribunal’s questioning; and that the timeline above has been constructed by the Tribunal. The Tribunal does not accept this submission. The Tribunal considers it unlikely, but accepts it is possible, that the applicant may have forgotten the exact date of a court appearance. The timeline above is as stated by the applicant at the hearing, however, and the Tribunal does not accept that the applicant would have proffered such a timeline if he had in fact been arrested less than a month before he departed Sri Lanka.

14. The applicant has provided a copy of a news report dated [in] May 2015 which contains photos of persons arrested that morning. The applicant claims that he is depicted in one of the photographs. He submitted that he became aware of the photo after his first court appearance but did not mention it to the Tribunal because he was not sure he would be able to obtain a copy which his [sibling] has now sent to him. The Tribunal notes a resemblance between the applicant and the person in the photo but does not consider this to be conclusive.  The Tribunal does not accept that the applicant was arrested because his evidence is at odds with the circumstances of the arrests as set out in the court application and consequently does not accept that the person in the photo is the applicant.

15. The applicant stated in his entry interview conducted [in] August 2012 that the police arrested him in a temple about two months before he left Sri Lanka because they were suspicious he was going to Australia and detained him for 3 days. He did not claim to have been charged or to have appeared in court and he did not mention this arrest in his written statement of 25 October 2012 setting out his protection claims. The Tribunal does not accept that the applicant was arrested by the police at a temple in [Town 4] two months before he came to Australia and detained for 3 days on suspicion of planning to come to Australia. [Town 4] is inland and there is no reason why a group of young men at a temple would be suspected of planning to depart illegally. Further, the applicant would have known of the arrests [in] May 2012 at the time of his entry interview given that they occurred before he departed Sri Lanka and most of those arrested were from [Town 1] and the Tribunal considers that the applicant made this statement based on his knowledge of those arrests.

    (b)A list of names

16. The applicant provided a partial list of names which he claims are the names of those who were released on bail in case number [deleted]. The list is typed and the applicant’s name appears [on] the typed list. The typed numbers have different handwritten numbers next to them. The applicant’s name appears [lower] on the handwritten list.

17. The application to the [Magistrates] Court discussed above states that a list of names of suspects was annexed to the document. That document includes a page with a list of the ‘main suspects’ [numbered] and the ‘passenger suspects’ [numbered]. Only one page of this list is included. A second list is also annexed which is in a different format and lists the passengers from [a different number]. The applicant’s name appears at [a certain number] of that list. The Tribunal considers that the first list in the court application is consistent with the rest of the court application albeit incomplete. The Tribunal does not accept that the second list is a genuine list of the passengers who were arrested and charged. For the reasons set out above, the Tribunal does not accept that the applicant was arrested and therefore does not accept that his name would appear on a genuine list of suspects. Accordingly, the Tribunal does not accept that the list of names provided by the applicant is a genuine list of the passengers who were arrested and charged.

    (c)Summons to the accused

18. The applicant has provided a summons which is only partially completed: the name and address of the accused is blank and there is no case number or reference. The offence on the summons is described as “in the aforementioned case not producing the accused [applicant name] before a court of law”.

19. The summons lists the guarantors of the accused as [Ms A] and [Ms B]. The applicant submitted that [Ms A] is his sister however he did not list a sister in his protection visa application.  He subsequently submitted that this person is an older woman known to his mother who he refers to as sister in a traditional way. He submitted that [Ms B] is his mother however he named his mother as [Ms C] in his visa application and gave her maiden name as [name] in his entry interview. He subsequently submitted that [name] is an incorrect transliteration of [name] and that his mother’s full name is [name].

20. The Tribunal does not accept that the summons is a genuine document or that it genuinely relates to the applicant. Firstly, for the reasons set out above, the Tribunal does not accept that the applicant was arrested as claimed. Secondly, the Tribunal does not accept that a court would issues a summons that is only partially completed and does not include the name of the accused. Thirdly, the summons refers to the applicant as the [number]^th accused and, whilst the Tribunal does not accept that the applicant’s name is on any genuine list of passengers who were arrested, it also finds that the handwritten amendment to the list of names the applicant provided is an attempt to create a link between the applicant and the summons document. Fourthly, the Tribunal does not accept that the guarantors listed at the top of the document are known or related to the applicant because the Tribunal does not accept that a friend of his mother’s was able to act as guarantor for the applicant or would have acted when the applicant has several adult family members in Sri Lanka; and, even taking into account the applicant’s explanation for the difference between the name on the summons and his mother’s names given in this visa application, the names are still different. In view of the other credibility issues in this case, the Tribunal does not accept the applicant’s explanation about the names of the guarantors on the summons and their relationship to him.

21. For the reasons set out above, the Tribunal does not accept that the applicant has been summoned to appear in court or that the applicant’s mother or family friend have had to appear in court because of the applicant’s failure to appear or that they have made any court appearances.

    (d) Certification

22. The applicant has provided a certification that “aforementioned numbered pages are true copies of final witness statements in case number [deleted]”. The Tribunal accepts that this document may relate to case number [deleted] but, for the reasons set out above, does not accept that the applicant had any involvement in case number [deleted].

    (e) Untranslated court document

23. The applicant has submitted that this document contains further information provided to the [Magistrates] Court. The Tribunal accepts that this document might be related to case number [deleted] but for the reasons set out above does not accept that the applicant had any involvement with that case.

24. For all the reasons set out above, the Tribunal does not accept that the applicant was previously arrested or charged in Sri Lanka for trying to leave illegally.

    Illegal departure

25. As the applicant left Sri Lanka illegally, he is likely to be arrested and charged with an offence under s.45 of the Immigrants and Emigrants Act 1945 on return to Sri Lanka. Whilst the Act provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction[11] and the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, has informed DFAT that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but have been fined as a deterrent towards joining boat ventures in the future.[12]  As the Tribunal does not accept that the applicant has been previously arrested or charged with trying to leave Sri Lanka illegally, the Tribunal is satisfied that he will be treated in the same way as other mere passengers on return to Sri Lanka.

    [11] Code of Criminal Procedure Act (No 15 of 1979), ss. 303, 306, See also Immigrants and Emigrants (Amendment) Act No 31 of 2006, s.2

    [12] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

26. DFAT has advised that, following arrest at the airport, returnees are taken before the Negombo Magistrates Court at the first opportunity but may be held in custody for a few hours or a few days at either the Airport CID office or the Negombo Prison; that, when brought before the court, most returnees have been immediately granted bail on personal recognisance with a family member acting as guarantor; and that, when the case is heard, the Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) whilst the court in Negombo typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.[13]

    [13] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

27. The advice from DFAT above indicates that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason.  The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is a law of general application and does not give rise to persecution under the Refugees Convention.

28. The Tribunal is satisfied that the applicant will be held in remand for a short period, between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The applicant’s parents and [siblings] are present in Sri Lanka to guarantee his bail. The evidence before the Tribunal does not indicate that they would not guarantee his bail. For the reasons set out above, the Tribunal does not accept that the applicant has been arrested before and therefore does not accept that he may be treated more harshly or be refused bail because of this prior arrest.

29. The Tribunal has considered whether the applicant faces a real chance of serious harm for a Convention reason whilst in custody for a short period of time pending bail. There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. In 2012, Freedom from Torture reported that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”.[14] For the reasons set out above, the Tribunal does not accept that the applicant will be perceived to have an association with the LTTE which would cause him to be targeted whilst in custody. The evidence before the Tribunal does not indicate that Tamil returnees who have been charged with illegal departure and remanded in custody have been targeted or harmed whilst on remand because of their race or for any other Convention reason.

    [14] Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September

30. The Tribunal has considered whether there is a real risk the applicant will suffer significant harm whilst in prison on remand for a short period of time. The ‘real risk’ test imposes the same standard as the ‘real chance’ test for assessing well-founded fear under the Refugees Convention, that is, a substantial chance, not one that is remote or far-fetched.

31. Torture is defined in the Act an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person to obtain information or a confession, to punish, to intimidate or coerce, or for a discriminatory reason. As stated above, Tamil prisoners with an actual or perceived link to the LTTE may be at risk of torture in prison but the Tribunal has found for the reasons set out above that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been tortured whilst on remand.

32. In 2015, DFAT advised that, “in general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions”.[15] Other country reports also indicate that prison conditions in Sri Lanka do not meet international standards because of overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.[16] The UK Home Office has noted that prison conditions in Sri Lanka are likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”[17] and the US Department of State (USDOS), citing an assessment by a former UN Special Rapporteur on Torture, has also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.[18]

    [15] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

    [16] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March

    [17] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9.11

    [18] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1

1. Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[19] Former President Rajapaksa “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[20]

   [19] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1

   [20] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1 

2. The Tribunal accepts that prison conditions in Sri Lanka are poor and do not meet international standards. The applicant will be remanded for a short period of time, between one and several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman in nature or an act or omission which is intended to cause extreme humiliation which is unreasonable.

3. Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.   Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not give rise to significant harm under Australian law.

4. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka he faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds, for the reasons set out above, that there are not substantial grounds for believing there is a real risk the applicant will be arbitrarily deprived of his life whilst on remand and the death penalty does not arise on the facts.

5. The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm.  The country information above indicates that the penalty which will be imposed on the applicant is a fine. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

6. The fine likely to be imposed on the applicant is between 5,000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between about $40AUD and $400AUD. The applicant stated at the hearing that he could pay such a fine and the Tribunal is accordingly satisfied that he can pay. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm.

   Refugee Assessment

7. Having regard to all the circumstances and findings above, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future because of his race, his imputed political opinion or his membership of particular social groups of Tamil fishermen, failed Tamil asylum seekers, Tamil returnees, persons who left Sri Lanka illegally, or persons who left Sri Lanka illegally after being arrested and detained for attempting to leave illegally, separately or cumulatively. The Tribunal finds that the applicant’s fear is not well founded.

   Complementary protection assessment

8. Having regard to all of the circumstances and findings above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm arising from his race or imputed link with the LTTE, his occupation, his status as a returnee or failed asylum seeker or person who has been charged with trying to leave Sri Lanka illegally or may be charged with departing Sri Lanka illegally, separately or cumulatively. 

   CONCLUSION

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

10. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Rea Hearn Mackinnon
    Member