1310333 (Refugee)

[2015] AATA 3146

1310333 (Refugee) [2015] AATA 3146 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1310333

COUNTRY OF REFERENCE:                 Sri Lanka

MEMBER:Chris Thwaites

DATE:8 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 08 July 2015 at 4:18pm

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] December 2012 and the delegate refused to grant the visa [in] July 2013.

3. [In] July 2013 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has had regard to the delegate’s decision record and the representative’s written submissions provided to the Tribunal by the representative. The Tribunal has also had regard to the county information referred to in the written submissions and the country information discussed with the applicant and his representative during the hearing.

5. The applicant’s protection visa application forms do not contain any reasons for claiming protection, and refers to a statement of claims. The applicant provided a written statement dated [in] December 2012 to the department as an attachment to the application forms. In summary the applicant states he was born in [Jaffna], Sri Lanka, and is a Tamil, Roman Catholic and a citizen of Sri Lanka. The LTTE was operating in his area during the civil conflict, and although he never had contact with the LTTE, he remembers his father used to be harassed to join them. After the end of the conflict his village was under the control of the Sri Lankan Army who treated Tamils very badly, harassing and intimating them. They were all scared of the Army. A division of the Army known as the Field Bike group had the duty of identifying LTTE members and on one occasion approximately four years ago the group came into a hair salon where the applicant was getting a haircut and put a pistol in his mouth and asked him if he had LTTE involvement and what he was doing in the area. This was standard behaviour of this group and the applicant remembers seeing them also point a gun in a man’s mouth who was standing on the road and asking if he was part of the LTTE.

6. The applicant states that in Jaffna he was a fisherman and fished in an area [which] is a well-known LTTE stronghold. The applicant experienced continual harassment by the Sri Lankan Army while he fished. When waiting in a queue to get fishing passes, two Army officers would beat the fishermen with poles and sticks. This happened approximately 10-15 times.

7. The applicant states that approximately one and half years ago he was fishing on the water and the Sri Lankan Navy came to inspect their fishing pass, and forced them to jump in the water. The applicant could not swim and begged the Navy to allow him to stay on the boat. They beat him and threw him in the water and the applicant had to hold onto the anchor so he did not drown.

8. In 2011 [Relative A] returned to Sri Lanka from [Country 1] and they worked together fishing. [Relative A] owned the boat but did not always accompany the applicant on the boat. On several occasions the Navy refused the applicant a fishing pass because [Relative A] was not there. There is no requirement for the owner to take the boat out and the applicant believes they did this to prevent him from fishing. This was the type of constant abuse suffered at the hands of government officials and it affected the applicant’s ability to earn a living. The Army also threatened [Relative A] as they believed he was involved in the LTTE. Because of this they were always putting barriers on their right to take the boat out to fish.

9. Apart from not being given fishing passes the Navy would tell the applicant he needed to buy alcohol for them. This happened regularly in 2011-2012. The applicant could not afford this. On some occasions the applicant would buy them alcohol as he needed to be allowed to fish. Sometimes [Relative A] would take a Sinhalese speaker with him to negotiate to get a pass. It was hard to survive and make a living. Due to this continual harassment [Relative A] left for [Country 1] and left his boat and equipment with the applicant. The applicant continued fishing and was harassed by the Navy who would continually ask where [Relative A] was and why he fled the country, and about the applicant’s involvement with [Relative A] and whether he was organising any type of activities and if the applicant was part of these activities. They continued to put restrictions on the applicant’s right to fish. It became untenable for the applicant to stay in Sri Lanka and he fled [in] July 2012.

10. The applicant states he fears he will be seriously harmed and there is no guarantee for his life if he returns to Sri Lanka. He fears he will be harmed by the Sri Lankan Government, Army and Navy. The job he was doing in Sri Lanka is under the control of the military. The applicant states they see us as their slaves and under their control and they continually assert their authority and have made it impossible for the applicant to earn a living. Now they have started to ask the applicant about this relationship with [Relative A] as they believe he has LTTE involvement, and now suspect the applicant has knowledge or involvement in [Relative A]’s activities. As far the applicant knows [Relative A] has no involvement with the LTTE. He was previously caught by the LTTE when he went fishing in the LTTE controlled area and was imprisoned by them and was released with the help of the UN and returned to the Army controlled area, and since that time they have suspected him of LTTE involvement. When he fled to [Country 1] the military have been questioning the applicant as they believe the applicant has knowledge of his activities. The applicant fears they could harm him because of this.

11. The representative provided a written submission to the department dated [in] June 2013. It submits the applicant will face sustained and systemic denial of his core human rights if returned to Sri Lanka, including: being subjected to abduction, detention, physical harassment, physical assault and possibly death by elements of the Sri Lankan state, including the CID and Sri Lankan Navy; denied the applicant to travel freely outside his area, earn a livelihood and denial of basic services that would threaten his ability to subsist; being subject to abduction, torture, physical assault at the hand of criminal elements connected to Sri Lankan smuggling networks. It is submitted that the feared harm includes threat to life and liberty and the denial of basic rights (including the ability to earn a living) threaten the applicant’s capacity to subsist.

12. The written submission submits the reasons for the persecution is the applicant’s race [ethnicity] as a Tamil; his imputed political opinion as an LTTE supporter; membership of particular social groups namely: failed asylum seeker; Tamil fisherman from an area of significant LTTE presence and/or LTTE recruitment; Tamil fisherman; family member of a suspected LTTE supporter. The written submission refers to a number of country information reports in support of the application.

13. The representative provided a further written submission to the Tribunal dated [in] January 2015 addressing issues raised in the delegate’s decision record. The submission states the personal and circumstantial attributes relevant to the claimant are he is a young Tamil male; originates from the north, being a Tamil area; was targeted in the past for reasons of race and imputed political opinion; departed Sri Lanka illegally; and claimed asylum in Australia being a western country. The submission refers to country information and makes submissions in relation to the heavy military presence in the Northern Province, the Sri Lankan Immigration & Emigration Act & Tamil Returnees, and critiques the October 2014 DFAT Country Report and Thematic Report.

14. The applicant appeared before the Tribunal on 16 March 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’s representative attended the hearing.

15. At the beginning of the hearing on 16 Mach 2015 the applicant told the Tribunal he had injured his back earlier that day and was in considerable pain. The Tribunal decided to reschedule the hearing to allow the applicant to consult a doctor and treat his pain. The applicant also submitted to the Tribunal at this time a letter from [Priest B in] March 2015, and a copy of Repeal or Reform of Sri Lanka’s Repressive National Security Law – A Comparative Legal Analysis- A speech at the discussion on “National Security law (PTS) in Sri Lanka: Impunity and Accountability” Grand Committee Room, Houses of Parliament, London, Tuesday 24 June 2014, two articles from CeylonToday, and an article from the Tamil Guardian dated 18 September 2012.

16. The resumption of the hearing was rescheduled a number of times due to the applicant’s injury and his representative’s availability and the hearing was eventually resumed [in] May 2015. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant’s representative attended the hearing.

17. During the hearing the applicant told the Tribunal his lawyer had assisted him in the preparation of his written statement and that the contents had been read back to him using an interpreter and that he understood the contents of the document before he signed it.

18. During the hearing the applicant told the Tribunal he feared returning to Sri Lanka due to the political and Army related problems he had experienced in the past. He told the Tribunal there was no guarantee to life for him in Sri Lanka and anything can happen at any time and that he may be abducted or killed. He told the Tribunal he was concerned the EPDP may harm him because they suspected he helped the Tamil Tigers, or suspect he has connection with them due to his connection with [Relative A]. 

    FINDINGS AND REASONS

    Nationality

19. On the basis of the copy of the applicant’s Sri Lankan passport and Identification Card provided to the department, the Tribunal finds that the applicant is a citizen of Sri Lanka. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Sri Lanka. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Sri Lanka, the Tribunal also finds that Sri Lanka is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

20. During the hearing the Tribunal discussed with the applicant his background, family composition, education and work history in Sri Lanka, as well as his reasons for leaving Sri Lanka and his fears of returning. While the applicant gave consistent oral evidence in relation to his family, education and work history, to the information he previously provided to the department, the Tribunal is concerned the applicant gave inconsistent oral evidence to his written statement, failed to mention a number of incidents detailed in his written statement until prompted by the Tribunal, and raised new claims during the hearing. The Tribunal found the applicant’s oral evidence often vague and his knowledge of the contents of his written statement appeared minimal and superficial, and not what the Tribunal would expect of someone who had actually experienced the incidents claimed in the statement. In response to the concerns raised by the Tribunal, the applicant told the Tribunal it has been a number of years now that he has been in Australia free and happy and he forgot many of the incidents that happened earlier. While the Tribunal has taken this into account, given the nature of the incidents and the detail provided in the applicant’s written statement, and noting the applicant signed the statement [in] November 2012, less than three years prior to the hearing, the Tribunal is not persuaded by the applicant’s explanation. The Tribunal is concerned the applicant has not told the truth in relation to critical claims in his written statement and has also fabricated his more recent claims in order to strengthen his application. The Tribunal finds he is not a witness of truth and it is not satisfied he has told the truth in relation to critical aspects of his claims. These matters are discussed below.

21. First, during the hearing the applicant told the Tribunal the EPDP were the main cause he exited Sri Lanka. He told the Tribunal that the EPDP would conduct roundups wearing Army dress, and threatened them. The applicant told the Tribunal they conducted a number of roundups in 2010, 2009 and 2008. On further questioning the applicant told the Tribunal that during roundups, boys over the age of 14 would be directed to leave their homes and gather at the local sports ground where they would be questioned and their identification checked. Their homes would also be checked for weapons and anyone hiding. People would be asked whether they had any connections with the LTTE and then sent home. The applicant told the Tribunal he had no connection with the LTTE and neither did his family. The applicant told the Tribunal the EPDP conducted the roundups with the support of the Army. On further questioning the applicant told the Tribunal the roundups happened approximately twice in 2010 and two or three time in 2008 and 2009 and if there were any problems there were also curfews where no one could leave their homes. 

22. During the hearing the Tribunal raised its concern that the applicant’s oral evidence was different to his written statement. The Tribunal noted the applicant had not mentioned the EPDP in his written statement. The Tribunal noted that the applicant’s written statement states he fears he will be harmed by the Sri Lankan government and fears the Sri Lankan Army and Sri Lankan Navy. In response the applicant told the Tribunal he had mentioned the Army earlier and the Army and the EPDP are all within the government. The Tribunal accepts the applicant mentioned the Army as well as the EPDP in his initial oral evidence. Nevertheless the Tribunal is concerned the applicant has not mentioned the EPDP in his written statement. He did identify the Sri Lankan Government, and the Sri Lankan Army and Sri Lankan Navy. The Tribunal noted that country information indicates that the EPDP are a very specific group within Sri Lanka, especially in the north of Sri Lanka. The Tribunal is concerned the applicant had not identified this group in his written statement and yet claimed in his oral evidence they are the main cause for him to exit the country. The Tribunal considers the difference between the applicant’s oral evidence and his written statement reflects poorly on the applicant’s credibility and the reliability of his evidence. The Tribunal is concerned that the applicant has embellished his claims in order to strengthen his application.

23. Second, during the hearing, when asked if, apart from the roundups and identification and home checks, anything else had happened to him, the applicant told the Tribunal “no, if there was anyone they would take them”. When asked if there was any other reason why he left Sri Lanka the applicant told the Tribunal he did not have freedom there, he did not have facilities to work there. He told the Tribunal he exited to go and settle somewhere. The Tribunal raised its concerns that the applicant’s oral evidence was quite different to the information in his written statement, noting in the section “Why I left the country” the statement detailed a number of incidents, which the applicant had failed to mention in his oral evidence.

24. During the hearing the Tribunal noted the applicant’s written statement detailed an incident with the Field Bike group. When asked why the applicant had failed to mention this in his oral evidence the applicant told the Tribunal he forgot to mention this. On further questioning about the incident, the applicant told the Tribunal that he had come back from work and went for a haircut in a salon and the Field Bike group came and did a roundup and questioned him about what he was doing and placed a pistol inside his mouth. The applicant told the Tribunal the person working in the salon spoke to them and got him released. On further questioning the applicant told the Tribunal other people were also beaten and harmed. The applicant could not remember if anything else happened, as it is more than three years now that he has been living in Australia free and happy and he has forgotten many incidents that happened earlier. When questioned when the incident with the Field Bike group happened the applicant told the Tribunal he could not recall and thought it may have been in or around 2009. While the Tribunal has taken into consideration the passage of time, the Tribunal is concerned the applicant failed to mention the incident in his initial oral evidence, especially given the detail in his written statement and the claim that the incident involved having a pistol placed in his mouth. The Tribunal would expect the applicant to recall such an incident when initially asked if anything else had occurred, if the incident had actually taken place. The Tribunal does not accept the applicant forgot to mention the incident. The Tribunal considers the applicant’s failure to mention this incident in his initial oral evidence reflects poorly on his credibility and on the claim that such an incident actually occurred.

25. Third, on questioning if any other incidents happened to the applicant he told the Tribunal that when he went for his fishing pass, they would hide his pass and if there were any problems there were beatings. On further questioning the applicant told the Tribunal that he would go to fish early in the morning and they suspected he had connections and would hide the applicant’s pass or ask for the owner of the boat, and the applicant had this problem because of his involvement with [Relative A], who they thought had connections with the LTTE. On further questioning the applicant told the Tribunal [Relative A] did not have contact with the LTTE but many times he was in detention, in jail. The applicant told the Tribunal in 1997 [Relative A] was caught working in the Movement controlled area by the LTTE and was detained and was then released with the help of the UN. The applicant told the Tribunal after his release [Relative A] was then arrested by the Army and put in jail and kept for one year and the UN helped to get him released. 

26. During the hearing the Tribunal raised its concern that the applicant’s oral evidence was different to his written statement. The Tribunal noted that while the applicant’s written statement noted [Relative A] was caught and imprisoned by the LTTE, and was then released with the help of the UN, it fails to mention [Relative A] was then arrested by the Army and jailed for one year and then released with the help of the UN. In response the applicant told the Tribunal he mentioned this in his interview with the department as well as his interview with his lawyers. During the hearing the Tribunal noted the applicant’s written statement states:

    As far as I am aware [Relative A] has no involvement with the LTTE. He was previously caught by the LTTE when he went to fish in the LTTE controlled area and he was imprisoned by them. With the help of the UN he was released and returned to the Army controlled area but since that time they have suspected him of LTTE involvement. When he fled the country for [Country 1] the military have been questioning me as they believe I have knowledge of his activities.

1. The Tribunal raised its concern that the applicant’s written statement gives details about the detention of [Relative A] by the LTTE but does not mention any arrest or detention by the Army after [Relative A] was released from the LTTE. In response the applicant told the Tribunal this is an important point and he does not think he missed it before. The Tribunal notes the applicant had earlier told the Tribunal his written statement had been read back to him using an interpreter before he signed it and that he was aware of its contents. The applicant told the Tribunal he did not know how he missed it, because he told the remaining things in detail so he does not know how he missed it. The Tribunal is not persuaded that the applicant missed it, or forgot to mention the claim that [Relative A] was arrested by the Army and jailed for one year and then released with the help of the UN, when having his written statement drafted, or when reviewing the statement with the help of an interpreter before signing the statement. The Tribunal notes the statement indicates after [Relative A] was released and returned to Army controlled he was suspected of LTTE involvement, but does not mention any arrest or jail. The Tribunal considers the difference between the applicant’s oral evidence and written statement reflects poorly on his credibility and the reliability of his evidence. The Tribunal is concerned that the applicant has embellished his claims in order to strengthen his application.

2. During the hearing the Tribunal raised its concern that the applicant had failed to mention in his oral evidence the details recorded in his written statement in relation to Army officers holding poles and sticks on either side of people queuing to get fishing passes and that if there was a rush to get into the water or anything agitated them they would beat the people queuing. In response the applicant told the Tribunal he had mentioned being beaten, and that when pushing or fibre got on the fence, or if there was a disturbance, they would beat them. The Tribunal accepts the applicant mention in his oral evidence queuing for passes and if there were any problems there were beatings, and that he was made to wait for his pass, and sometimes they would hide it and sometimes they would give it to him, or requested he get the owner of the boat. Nevertheless the Tribunal is concerned the applicant failed to mention the detail noted in his written statement, that two Army officers would be on either side with poles and sticks and if there was a rush or anything agitated them they would beat them. In isolation the Tribunal would not give much weight to this omission, but in light of the Tribunal’s other concerns in relation to the applicant’s credibility, the Tribunal considers this omission reflect poorly on his credibility and the reliability of his evidence.

3. Fourth, during the hearing the applicant told the Tribunal that after [Relative A] left Sri Lanka and returned to [Country 1] 2011, the applicant continued to fish, but because of the problems he stopped using [Relative A]’s boat. He would go with other friends, but because of the problem he slowly stopped fishing. On further questioning the applicant told the Tribunal he did not stop completely, he reduced it in 2011 & 2012. The Tribunal raised its concerns that the applicant had previously told the Tribunal he was a fisherman up until the time he came to Australia, in July 2012, and had gone fishing every day. In response the applicant told the Tribunal he is telling the truth about what happened to him, what trouble he had, and what harm he faced, and that to eat he had to go to work, to go for fishing, and that sometimes because of the fear, in seven days maybe two days he would not go, but most of the time he went. The Tribunal is concerned the applicant’s oral evidence was inconsistent, initially he told the Tribunal he went fishing everyday up until the time he left for Australia, and later he told the Tribunal he slowly stopped fishing in response to the problems, and then he told the Tribunal he did not stop completely but reduced it. The Tribunal is concerned the applicant has changed his oral evidence in order to support his claims, and then in order to respond to an issue raised by the Tribunal. The Tribunal considers this reflects poorly on the applicant and on the reliability of his evidence.

4. Fifth, during the hearing the Tribunal noted the applicant had failed to mention in his oral evidence an incident detailed in his written statement, that while fishing the Navy came to inspect fishing passes and told the applicant to jump off the boat into the water, and that the applicant begged them to allow him to stay on the boat as he could not swim, but the Navy did not care and beat the applicant and threw him into the water and he had to hold onto an anchor so he would not drown. In response the applicant told the Tribunal he had mentioned the Navy beat him. The Tribunal accepts the applicant told the Tribunal he had been beaten by the Navy. Nevertheless the Tribunal is concerned the applicant failed to mention this incident in his oral evidence, an incident he provided in some detail in his written statement, and which indicates the applicant’s life was put at risk, and that he had to hang onto the anchor so he did not drown. The Tribunal considers the applicant’s failure to mention this incident in his oral evidence reflects poorly on his credibility and the reliability of his evidence and raised doubts about whether this incident actually occurred.

5. Sixth, during the hearing the applicant told the Tribunal he left Sri Lanka [in] July 2012 with the help of an agent who was arranged by the applicant’s brother. The applicant told the Tribunal the cost was 10 Lakhs and that his mother arranged the money from people in another country and she gave that money to his brother who paid the agent. The Tribunal raised its concern that the decision record noted “when questioned about how he afforded his travel to Australia, the applicant stated he used 10 Lakhs of his own money for the journey.” In response the applicant told the Tribunal he borrowed the money from them so it’s his money and he has to give it back as no one can give this money for free. The Tribunal is not persuaded by this response. The Tribunal notes the applicant changed his oral evidence, from stating his mother arranging the money, to stating the applicant borrowed the money, in response to the issue raised. The Tribunal is concerned the applicant’s oral evidence is different from the information he provided to the delegate and recorded in the decision record. The Tribunal is also concerned the applicant changed his oral evidence in response to an issue raised. The Tribunal considers this reflects poorly on the applicant’s credibility and on the reliability of his evidence.

6. Seventh, during the hearing the applicant told the Tribunal that since he left Sri Lanka some anonymous people have asked his mother and brother about the applicant and where he was. The applicant told the Tribunal his family told him about this when he spoke to them after he was released from the camp in Australia. The Tribunal noted the applicant’s written statement did not mention his family members had been approached by anonymous people asking about the applicant’s whereabouts, and also noted it was not mentioned in the decision record. On further questioning the applicant told the Tribunal his family told him after he was released from the camp, and he thought he was released after about three months. On further questioning the applicant thought he was released after six months and that his family had told him before his [birthday]. The Tribunal noted its concerns that the applicant was vague about when he left the camp and when his family told him they had been approached by anonymous people asking about his whereabouts. In response the applicant told the Tribunal he was not sure if he had mentioned this earlier or not and that he had not taken it as a big matter as it was anonymous people and his family did not tell him in detail. The Tribunal noted the decision record indicates the applicant was granted a BVE and released from detention [in] November 2012 and that his written statement is dated [in]December 2012. The Tribunal is concerned the applicant did not mention in his written statement that since he left Sri Lanka anonymous people has asked his mother and brother about his whereabouts. The Tribunal is also concerned about the delay in providing this information, well over two years since the applicant left immigration detention in Australia. The Tribunal does not accept the applicant did not consider this a big matter because it was anonymous people and because his family did not tell him in detail. The Tribunal considers the omission of this information in the applicant’s written statement and the delay in making the claim raises serious concerns about the applicant’s credibility and the reliability of his oral evidence. The Tribunal is concerned the applicant has fabricated this claim in order to support his application.

7. Eighth, during the hearing the Tribunal discussed with the applicant the documents he had provided at the first hearing, specifically the letter from [Priest B]. The applicant told the Tribunal he knew the Father from when he was studying and through a youth group and that he would see him before he came to Australia at Sunday Mass. The Tribunal noted the letter states the applicant was harassed by the Sri Lankan military and the Tribunal questioned the applicant about how the Father knew this. The applicant told the Tribunal the Father helped the applicant in certain situations. He told the Tribunal when the applicant was being searched, for protection the applicant stayed in his house sometimes. On further questioning the applicant told the Tribunal when they came looking for the applicant he would go and stay at his place. He told the Tribunal whenever there was a bomb blast or some was shot they would go to the church. On further questioning the applicant told the Tribunal the EPDP, Political, Police and Army came looking for him when he was working in 2011 and 2012. He told the Tribunal they were looking for him when he worked with [Relative A] and the problem kept tightened at the time and they were looking for the applicant and [Relative A] left him alone and went to [Country 1], and it was regarding [Relative A]. The Tribunal raised its concern the applicant had not mentioned that people had come looking for the applicant and that he hid in the home of the Father in his earlier oral evidence. In response the applicant told the Tribunal they were looking for [Relative A] and to find out information about [Relative A] they were looking for the applicant, and because of the fear they may take the applicant for questioning about [Relative A] he was hiding. The applicant could not recall a specific date when this happened but thought it happened between 2011 and 2012. The Tribunal also raised its concerns that the applicant had failed to mention in his written statement that people came looking for him and that he had to hide. In response the applicant told the Tribunal he mentioned it. While the Tribunal accepts the written statement indicates the applicant was questioned about [Relative A], the Tribunal notes the statement does not mention people searching or looking for the applicant, or that the applicant hid from them in the Father’s home. In response the applicant told the Tribunal people were looking for [Relative A] and since they couldn’t find [Relative A] they were looking for the applicant. The applicant then changed his oral evidence and told the Tribunal that because of that the applicant never went out of his house. The Tribunal noted that the applicant’s earlier evidence was that he continued to fish during this period and that he hid in the Father’s house. In response the applicant told the Tribunal he approached the Father for protection, and not only him but him and his friends, and not only this Father, sometimes there would be other Father’s as well, and if they went there it would be safe for them.

8. The Tribunal is concerned that on questioning about the letter from [Priest B], the applicant raised new claims that people or the EPDP, Political, Police and Army came looking for him when he was working in 2011 and 2012, and that he hid in the Father’s home. The Tribunal is concerned the applicant had not mentioned this in his previous oral evidence or in his written statement. The Tribunal is concerned the applicant has fabricated this claim in order to support his application and the contents of the letter. The Tribunal notes the applicant’s oral evidence changed on further questioning and the applicant contradicted his earlier evidence. The Tribunal found the applicant’s responses to questions about the letter from [Priest B] and his knowledge of the applicant’s circumstance evasive, inconsistent and not persuasive. The Tribunal notes the contents of the letter from [Priest B] does not mention the applicant hiding at the Father’s home. The Tribunal considers the new claims that people / EPDP, Political, Police and Army came looking for him when he was working in 2011 and 2012, and that he hid in the Father’s home, have been fabricated by the applicant in order to support his application and the contents of the letter. The Tribunal considers this reflects poorly on the applicant and on the reliability of his evidence and the genuineness of the letter from [Priest B].

   Does the applicant have a well-founded fear of persecution?

9. As noted above the Tribunal finds the applicant is not a witness of truth and it is not satisfied he has told the truth in relation to critical aspects of his claims. While the Tribunal has significant concerns about the applicant’s credibility and the reliability of his evidence the Tribunal notes he did have a level of knowledge about the fishing industry and regulations in the north of Sri Lanka that was consistent with country information for that time and the Tribunal accepts the applicant worked as a fisherman in the north of Sri Lanka.

10. Nevertheless, as outlined above, the Tribunal is concerned the applicant has not told the truth and has fabricated new claims in order to support his application. Given the omissions and inconsistencies between the applicant’s oral evidence and his written statement the Tribunal does not accept the applicant was questioned and had a pistol put in his mouth by the Field Bike group. The Tribunal does not accept [Relative A] was caught and detained by the LTTE or was then arrested and jailed by the Army. The Tribunal does not accept the applicant was beaten and thrown into the water by the Navy or that he had to hold onto the anchor so he would not drown.

11. The Tribunal does not accept [Relative A] was of adverse interest to the Sri Lankan authorities as claimed. Given the credibility concerns noted above, the Tribunal is not satisfied the applicant has told the truth in relation to this claim. The Tribunal also notes the applicant told the Tribunal [Relative A] returned to Sri Lanka from [Country 1] with the help of the UN in 2011 and travelled through Colombo airport on his return. The applicant also told the Tribunal [Relative A] registered his fishing boat and had a fishing licence and operated a fishing business while in Sri Lanka in 2011. The Tribunal does not accept [Relative A] could have done this and have been of adverse interest to the Army or Navy or Police or the EPDP as claimed by the applicant. The Tribunal does not accept [Relative A] left Sri Lanka because of any adverse interest in him from the authorities.

12. The Tribunal does not accept the applicant had to reduce his fishing activity prior to leaving Sri Lanka. The Tribunal notes the applicant initially told the Tribunal he fished every day until he left Sri Lanka, and then he changed his oral evidence later in the hearing to address issues raised by the Tribunal. The Tribunal notes the applicant’s inconsistent oral evidence about who paid for his travel to Australia, and the Tribunal is not satisfied the applicant has told the truth about his mother arranging the money, or that he borrowed the money. The Tribunal prefers the information recorded in the delegate’s decision record, provided prior to the delegate drawing any conclusions from the applicant having savings, that the applicant used his own money to pay the 10 Lakhs for his travel to Australia. While the Tribunal accepts there is some country information which indicates the Sri Lankan Army and Navy did harass Tamil fisherman during and soon after the conflict, the Tribunal does not accept the applicant was continually harassed and beaten while fishing, or required to buy alcohol of the Navy or beaten with poles and sticks while queuing for a fishing pass.

13. Given the concerns discussed above the Tribunal gives little weight to the letter from [Priest B] and the Tribunal does not accept that anyone had any adverse interest in the applicant because of his connection with [Relative A] or harassed him and questioned him about [Relative A].

14. The tribunal does not accept that people / EPDP, Political, Police and Army came looking for the applicant when he was working in 2011 and 2012, and that he went into hiding and hid in the Father’s ([Priest B]) home, or the home of any other Father, or that he never went out of his own house. The Tribunal does not accept it became untenable for the applicant to stay in Sri Lanka or that this is the reason he left. The Tribunal finds the applicant was able to pursue his chosen profession as a fisherman up until the time he left for Australia, and was able to regularly fish and earn enough money to save and pay 10 Lakhs for his travel to Australia. On the evidence before it the Tribunal does not accept there is a real chance, that on his return to Sri Lanka, the applicant would be denied basic rights (including the ability to earn a livelihood) or be denied the ability to earn a livelihood and access basic services such that would threaten his ability to subsist.

15. On the evidence before it the Tribunal does not accept the applicant was of any adverse interest to anyone at the time he left Sri Lanka.

16. Given the concerns noted above, the Tribunal does not accept the applicant’s claim that people have been looking for him since he left Sri Lanka or that anyone approached his mother or brother asking about him and his whereabouts.

17. During the hearing the Tribunal discussed the first written submission dated [in] June 2013 with the applicant and the representative, specifically in relation to the submission that the applicant will face harm from the CID. The Tribunal noted there had been no mention of the CID in any of the oral evidence. The represented submitted the CID is part of the authorities in Sri Lanka who could target the applicant and noted the applicant did raise the EPDP.

18. The Tribunal also discussed the submission that the applicant would continue to be denied the ability to travel freely outside his own area. The representative told the Tribunal that claim is not relevant to the applicant’s matter. The applicant told the Tribunal he could not go out and do his job outside his village because he does not know where to go or who to ask and there is no protection and he could only earn a living within his village. When asked who would deny him the ability to travel freely outside his village, the applicant told the Tribunal that because of the political problems and the people in other villages may ask who are you.

19. The Tribunal noted the while the country information indicates that there is a large military presence in the north and security checkpoints are sometimes used, it also indicated there were no restrictions on movement within the country, and the Tribunal noted it was not aware of any country information that indicated the Army or authorities restricted Tamils movements. In response the applicant told the Tribunal that because of the problem he had, he was scared to go. While the Tribunal accepts that the country information indicates there remains a large military presence in the north of the country and checkpoints are sometimes used, the Tribunal does not accept the applicant’s movements within the country were restricted prior to leaving Sri Lanka.

1. The Tribunal also noted the written submission that the applicant will continue to face being subjected to harm at the hands of criminal elements connected to Sri Lankan people smuggling networks. In response the applicant told the Tribunal that because of the problem he had he left the country. The representative submitted the applicant may not have understood the submission and that country information indicates government elements were involved in people smuggling and therefore the applicant fears the authorities, not because they are connected to people smuggling, but due to his political opinion or imputed political opinion.

2. On the evidence before it, and for the reasons noted above, the Tribunal does not accept the applicant was targeted in the past, nor does the Tribunal accept he was or is of any ongoing adverse interest to Sri Lankan government, Sri Lankan Army or Navy or the CID or the EPDP or criminal elements connected to the Sri Lankan people smuggling networks, or that his movements will be restricted if he was to return to Sri Lanka.

3. On the evidence before it the Tribunal does not accept there is a real chance the applicant will suffer serious harm or harm of any kind by the Sri Lankan government, Sri Lankan Army or Navy or the CID or the EPDP or criminal elements connected to the Sri Lankan people smuggling networks due to his connection with [Relative A] or any imputed connection with the LTTE, if he returned to Sri Lanka, now or in the reasonably foreseeable future.

4. As noted above the Tribunal does not accept [Relative A] was of any adverse to the Sri Lankan authorities as claimed, and given the applicant has told the Tribunal his family had no connections with the LTTE, the Tribunal does not accept he was or is perceived to be a family member of a suspected LTTE supporter. Therefore the Tribunal does not accept there is a real chance the applicant will suffer serious harm if he returned to Sri Lanka, now or in the reasonably foreseeable future, for that reason.

5. The Tribunal has also considered whether the applicant’s Tamil ethnicity, being a young Tamil male from a particular area, being a Tamil fisherman or young Tamil fisherman, or being a Tamil fisherman or young Tamil fisherman from an area of significant LTTE presence and/or recruitment, is sufficient to establish a real chance that he will be harmed for that reason.

6. The Tribunal has had regard to the representative’s written submissions and the country reports referred to including the Amnesty International June 2012 report about ongoing human rights abuses in Sri Lanka and the 2011 US State Department Report on human rights practices, confirming that a disproportionate number of victims of human rights violations were Tamils. The Tribunal has also taken into account the documents submitted during the first hearing including the a copy of Repeal or Reform of Sri Lanka’s Repressive National Security Law – A Comparative Legal Analysis- A speech at the discussion on “National Security law (PTS) in Sri Lanka: Impunity and Accountability” Grand Committee Room, Houses of Parliament, London, Tuesday 24 June 2014, two articles from CeylonToday, and an article from the Tamil Guardian dated 18 September 2012. As discussed in the hearing the Tribunal must also take into account the relevant assessments of the DFAT Country Report and the DFAT Thematic Report[1]. During the hearing the Tribunal also noted the UNHCR Eligibility Guidelines[2] and the Upper Tribunal decision[3].

   [1] DFAT Country Report - Sri Lanka, (16 February 2015), DFAT Thematic Report People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014)

   [2] United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

   [3] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

7. The Tribunal has considered the representative’s oral submissions and references to the Human Rights and Democracy Report March 2015. The representative noted that report addresses ongoing problems for the Tamil community in Sri Lanka, with reference to an incident in April 2013 and the military involvement in commercial and civil activities in the northern area. The representative acknowledged the Tribunal had raised a number of inconsistencies and concerns with the applicant’s credibility throughout the hearing, and submitted that if the Tribunal accepted the applicant was a Tamil fisherman these threats from the military are real and could lead to Convention related harm.

8. The Tribunal has taken the report by the United Kingdom: Foreign and Commonwealth Office[4] into consideration. The report refers to the recent elections and issues in relation to freedom of expression and assembly noting issues for journalists and opposition MP’s and refers to reports that leading protesters were detained under the Prevention of Terrorist Act (PTA).  The report also addresses issues for Human Rights Defenders and access to justice and the rule of law and the death penalty and continuing allegations of torture and cruel, inhuman or degrading treatment. In relation to minority rights the report states that three Tamil Tiger operatives were killed by security forces near Vavuniya in the north with scores detained and questioned and over 60 arrests under the PTA. The report also notes that although military drawbacks were evidence in some areas there is still a high level of military involvement in commercial and other civil activities and the occupation of land in high security zones and military cantonments, and that the security forces have been accused of human rights violations in these areas.

   [4] >

   The Tribunal has also considered the representative’s written submission which submits that the trend of monitoring and harassing Tamils day to day has generally eased, which could be interpreted as, this (persecutory) trend continues to this day, and therefore the applicant is at risk of being subjected to such persecutory treatment if returned.

9. The Tribunal has taken into consideration the representative’s submissions in relation to the DFAT Reports, and the concerns that some of the terminology in those reports is vague and not verifiable and the reports appear to pick and choose sources, given one made a reference to the UNHCR Eligibility Guidelines from 2010 and not 2012.The Tribunal notes the representative’s references to other sections of the report that indicate military and security forces maintain a significant presence in the Northern Province and that check points have been re-established from time to time including in March 2014 due to an alleged resurgence of LTTE activity[5]. The Tribunal has taken into consideration the extracts from the Amnesty International report noting that many victims of serious human right violations are Tamils suspected of links to the LTTE, and the UNHRC Eligibility Guidelines (2012) (which was not referred to in the more recent DFAT report) that persons belonging to the Sinhalese majority may fall within the risk profiles, generally members of the minority Tamil and, to a lesser extent, Muslim communities, are reportedly more often subject to arbitrary detention, abductions or enforced disappearances. 

   [5] DFAT Country Report - Sri Lanka, 2014 at 2.35

10. The Tribunal accepts that the country information indicates that Tamils suffered disproportionately at the hands of the authorities during the civil war which ended in 2009, and there continues to be a large military presence in the north of the country. The Tribunal also accepts there is evidence of continuing targeting of some Tamils since the end of the war. The Tribunal accepts the reports referred to by the representative indicate Tamils with particular profiles continue to attract the adverse attention of the Sri Lankan Army and authorities and paramilitary groups. Nevertheless, the DFAT Country Report has assessed that there are currently no official laws or policies that discriminate on the basis or ethnicity or language, there is only a low level of discrimination in the implementation of laws and policies, and that the LTTE no longer exists as an organised force and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on civilians or those returning from abroad.  It indicates that since the civil war ended in May 2009 there has been considerable change in the security situation such that the risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced.

11. While the Tribunal has considered the representative’s submission in relation to the reliability of the DFAT Country Report, the Tribunal notes that its assessments are consistent with the UNHCR Eligibility Guidelines and the findings in the Upper Tribunal decision. The Tribunal has taken into consideration the country information and articles and the previous Refugee Review Tribunal decisions referred to in the written submissions. The Tribunal notes that the DFAT Country and Thematic Reports are more current than many of the country information reports referred to in the submissions, and the Tribunal considers them to be current and authoritative sources on the situation in Sri Lanka. 

12. The Tribunal notes that the UNHCR Eligibility Guidelines state that: “In light of the improved human rights and security situation in Sri Lanka there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”. The DFAT Thematic and Country Reports, the UNHCR Eligibility Guidelines and the Upper Tribunal decision all discuss the changing political and security situation in Sri Lanka. The DFAT Country Report states the security situation in the north and east has greatly improved since the end of the military conflict.

13. While the Tribunal accepts there continues to be a military presence in the Northern Province and checkpoints are re-established from time to time, the Tribunal notes the Upper Tribunal decision indicates that the Sri Lankan government’s objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan State. It indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants and everyone in LTTE dominated areas had some level of involvement with the LTTE during the civil war. The government’s concern now is not with past membership or sympathy, but with whether a person is a destabilising threat in post conflict Sri Lanka. The Upper Tribunal decision identifies persons at real risk of persecution or serious harm to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they have, or are perceived to have, a significant role in relation to post conflict Tamil separatism. The UNHCR Eligibility Guidelines outline certain “risk profiles” which generally refer to those who have a reasonable level of LTTE links.

14. While the Tribunal notes the UNHCR Eligibility Guidelines are not exhaustive, the Tribunal also notes they do not list age, or being a fisherman, or area of residence or work, in the risk profiles. The Tribunal has considered the applicant’s circumstances and characteristics and finds he does not come within the risk profiles outlined in the UNHCR Eligibility Guidelines.

15. The Tribunal has also taken into consideration the Amnesty International report noting that out of 876 persons in detention under the Prevention of Terrorism Act (PTA), 867 were Tamils, submitting that this indicates a trend by the Sri Lankan authorities to misuse the power of the PTA to detain Tamils. The Tribunal accepts the Amnesty International report indicates the vast majority of persons detained under the Prevention of Terrorism Act (PTA) were of Tamil ethnicity. The Tribunal notes that according to the DFAT Country Information Report (31 July 2013), during the civil conflict more Tamils were detained under the PTA and Emergency Regulation than any other ethnic groups, largely because the LTTE members and supporters were almost all Tamil. While there may have been instances of discrimination in the application of those laws the Tribunal notes country information indicates the Emergency Regulations were repealed in 2011 and the DFAT 2013 Country Report states that according to the Commissioner General, as at 21 May 2012, 340 ex-combatants remain in rehabilitation under court orders and only three rehabilitation centres remain functioning. The Tribunal does not accept the representative’s submission that the evidence indicates a trend by the Sri Lankan government to misuse the powers of the PTA to detain Tamils. The Tribunal does not accept that the evidence establishes that the PTA is being used in a systemic and discriminatory manner against Tamils.

16. The Tribunal has also taken into consideration the written submission in relation to changes to the political landscape since the recent Presidential election, and accepts that prominent members of parliament from the previous government are swapping to the new ruling party. While the Tribunal accepts the new President of Sri Lanka has indicated he would not be withdrawing the Army from the north, the Tribunal notes country information indicates the new President has established a Special Presidential Task Force for Reconciliation and has replaced the retired Army general governor of the Northern Province with a career diplomat, and has appointed a Tamil as the Chief Justice of the Supreme Court of Sri Lanka[6]. There is no information to suggest the new government or President intends to pursue policies designed to persecute Tamils.

    [6]

17. The Tribunal does not accept that the evidence before it establishes that the PTA is being used in a systemic discriminatory manner against Tamils, or that Tamil fishermen are targeted for adverse attention and treatment, nor does it accept that the military presence and focus on destabilising threats to the unity of the Sri Lankan State places the applicant at risk of facing convention related harm. The Tribunal does not accept that the evidence before it establishes that Tamils are at risk of serious harm on the basis of their ethnicity alone, or because they are a young Tamil male, or a young Tamil male from a particular area, a Tamil fisherman or young Tamil fisherman, or a Tamil fisherman or young Tamil fisherman from an area of significant LTTE presence and/or recruitment. The Tribunal does not accept there is a real chance the applicant will face sustained and systemic denial of his core human rights if returned to Sri Lanka, now or in the reasonable foreseeable future.

18. The Tribunal does not accept that the applicant has any particular profile or imputed profile such that there is a real risk he will suffer serious harm for the reasons he has claimed. Therefore the Tribunal finds there is not a real chance that he will suffer serious harm because of those reasons.

19. The Tribunal has considered whether there is a real chance the applicant will be harmed due to his illegal departure from Sri Lanka, or because he claimed asylum in Australia being a western country, and for being a failed asylum seeker returning to Sri Lanka.

20. The Tribunal accepts the applicant departed Sri Lanka unlawfully in July 2012 in breach of the Sri Lankan Immigrants and Emigrants Act (the I&E Act). The Tribunal does not accept that the applicant had a profile as having links to the LTTE or any adverse political profile or imputed profile or suspected links to the LTTE before he left Sri Lanka. The Tribunal accepts that the country information indicates that up until at least 2012 there were reports that some Tamils returning to Sri Lanka from the United Kingdom suffered abuse. These cases involved people who had some level of connection with the LTTE or were suspected of links to the LTTE or criminal connections.

21. The Tribunal accepts there is a real chance the applicant will come to the attention of authorities at the airport on return to Sri Lanka and may be arrested for breaching the I&E Act. The Tribunal has taken the articles submitted to the Tribunal at the first hearing into account including the CeylonToday articles and the Tamil Guardian article noting the Tamil against Genocide had called for a comprehensive re-evaluation of the UK government’s current policy towards Tamils from Sri Lanka. The CeylonToday article of 8 March 2015 reports a spokesperson from the Tamil National Alliance stated that nothing had changed and advising the Diaspora not to return to the country noting some returnees had been detained at the airport. The CeylonToday article dated 19 October 2014 reports 73 boat people returned to Sri Lankan were remanded, noting the reason for remanding the returnees was that some had attempted to reach Australia on more than one occasion and some had facilitated the boat people, and the rest were released on bail. The Tribunal has taken into consideration the representative’s written submissions that the I&E Act is arbitrarily applied in an inconsistent manner by the Sri Lankan courts, given the disparity in the manner the law is applied between the Magistrates Court in Colombo and the Magistrates Court in Negombo. The submission refers to information in the DFAT Country Information Report dated 31 July 2013 which indicated that the Magistrate in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees, whereas the Magistrate in Negobmo, who handles large numbers of these cases, has been handing out fines of up to 50,000 Sri Lankan Rupees to act as a deterrent. The Tribunal notes that this information is repeated in the DFAT Country Report (3 October 2014 & 16 February 2015).The submission states the judges applying the same law for a similar offences and arriving at significantly different conclusions for reasons of “deterring” certain persons in a specific location such as Negombo is evidence that the law is arbitrarily applied by Sri Lankan judges. The Tribunal does not accept this. The Tribunal does not accept that different fine amounts are evidence the law is arbitrarily applied. The Tribunal considers different fine amounts indicates the exercise of judicial discretion in setting the amount of the fine allowed for under the I&E Act. Without further information in relation to each case and the factors taken into account in order to arrive at the fine amount the Tribunal is not satisfied that different fine amounts handed out by different Magistrates indicates the law is being arbitrarily applied.

22. The Tribunal notes that the DFAT Country Report (16 February 2015), the Upper Tribunal decision and the UNHCR Eligibility Guidelines all indicate that standardised procedures apply to all cases at the airport in Sri Lanka, regardless of a persons’ ethnicity or circumstance in which they left the country and the Tribunal accepts these reports as authoritative. The information indicates that upon arrival all arrivals are screened against an immigration database and returnees are routinely interviewed at the airport by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). Returnees who are believed to have left the country in breach of I&E laws are arrested at the airport and brought before a court to apply for bail. Bail is routinely granted and if the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available[7].

    [7] DFAT Country Report,- Sri Lanka (3 October 2014)

1. The Tribunal accepts that on return to Sri Lanka there is a real chance the applicant will be arrested at the airport and brought before a magistrate to apply for bail, and if arriving over a weekend or public holiday, he may be held in the Negombo Prison for a number of days to await a bail hearing. The Tribunal finds that this will be the result of the non-discriminatory enforcement of a law of general application.

2. The Tribunal has taken into consideration the written submission that in the arrival interrogations or during the period of remand the applicant is at real risk of convention based persecution or significant harm. The Tribunal has considered the country information and reports referred to[8] as well as the UK Home Office Operational Guidance Note (April 2012) and the extract from the Upper Tribunal decision referred to in the submissions. The Tribunal notes that more recent country information specifically relating to returnees indicates that failed asylum seekers are not treated differently from other returnees and there is no difference in the way Tamil returnees are treated in comparison to Sinhalese or Muslim returnees.[9]

   [8] 8 December 2011; “SRI LANKA: Reflections on the killings in the prisons and the impeachment of the Chief Justice”; UN Committee Against Torture (CAT), Consideration of reports submitted by States parties under article 19 of the Convention - Sri Lanka, 8 December 2011, CAT/C/LKA/CO/3-4, available at: ‘Sri Lanka: RRT Country Information Request - LKA40999’, 19 October 2012, CX297471; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT Country Information Report in relation to Sri Lanka (31 July 2013) paragraphs 3.72-3.74, 3.76; Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka - Report from Danish Immigration Service’s fact-finding mission to Colombo, Sri Lanka, 19 June to 3 July 2010, Copenhagen, October 2010, pages 52 to 54; UK Home Office, Sri Lanka - Country of Origin Information (COI) Report, 7 March 2012, paragraphs 25.29-25.35, 25-37-25.39, 25.42-25.44; UK Home Office, Sri Lanka - Bulletin: Treatment of Returns, December 2012, paragraphs 3.03-3.04, 3.08-3.25, 3.32-3.42.

The Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, and despite a high level of reporting, there is no recent and authoritative evidence to indicate that returnees suffer serious harm while in custody at the airport or on remand. The Tribunal is not satisfied, on the evidence before it, that returnees are subject to mistreatment while in custody at the airport or on remand.

The Tribunal accepts that prison conditions in Sri Lanka are poor due to overcrowding and unsanitary conditions.[10] The Tribunal considers that the cramped and uncomfortable conditions apply to persons in remand generally and not specifically to Tamils or failed asylum seekers. The Tribunal does not accept that one or more of the five convention reasons would be the essential and significant reason or reasons for the applicant experiencing those conditions, as required by s.91R(1)(a).

[10] US State department, Country Reports on Human Rights Practices for 2012 in relation to Sri Lanka, Section 1.c, Prison and Detention Center Conditions.

The Tribunal has considered the written submissions in relation to the possibility of a custodial sentence under the I&E Act. The Tribunal does not accept the written submission that the mere possibility of a harsh sentence does, in itself, constitute persecution.  The Tribunal notes the DFAT Country Report states that the Sri Lankan Attorney General’s department reports that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally, although fines have been issued to act as a deterrent, with typical fines ranging from 5000 to 50,000 Sri Lankan Rupees (around AUD 40 – 400). The applicant has not raised any claims that he will not be granted bail or that the imposition of a fine will cause him serious harm. The Tribunal considers the information indicates that if arrested, the applicant will not be sentenced to imprisonment, and finds the chance of him receiving a custodial sentence for illegal departure is remote.

On the evidence before it the Tribunal is not satisfied that there is a real chance that the applicant will suffer persecution on return to Sri Lanka because of his illegal departure from Sri Lanka, or because he claimed asylum in Australia being a western country, and for being a failed asylum seeker returning to Sri Lanka.

The Tribunal has also taken into consideration the submissions in relation to ongoing risk of re-arrest and detention if the applicant were to receive a suspended sentence. Given the country information noted above the Tribunal considers the chance the applicant will receive a suspended sentence for illegal departure is remote.

The Tribunal has also considered the submissions in relation to the vulnerability of returnees after they return to their place of origin, and the county information referred to, including the research response from the Immigration and Refugee Board of Canada (August 2011). The Tribunal does not accept that because the investigative processes at the airport may including contacting family members or neighbours or town police to verify identity and check criminal and court records, these processes expose Tamil returnees to convention related harm. The Tribunal notes that the UNHCR Eligibility Guidelines indicates that thousands of people have returned to Sri Lanka since 2011. The Tribunal also notes that the Upper Tribunal decision noted evidence that 11500 former LTTE cadres have been through the Sri Lankan government’s rehabilitation program and released, and despite ongoing monitoring the Tribunal did not consider that the post-rehabilitation monitoring rises to the level of persecution. While the Tribunal notes there is some country information to suggest that some returnees are visited by the CID on their return to their place of origin, there is no suggestion that returnees are subject to the same level of monitoring as the post-rehabilitation program monitoring. The Tribunal has taken into account the written submission critiquing the DFAT Thematic Report, and the submission that as the PTA remains in place and the authorities remain sensitive to the potential re-emergence of the LTTE, such an environment would expose the applicant to convention related harm. The Tribunal does not accept that the Sri Lankan government’s policies and actions demonstrate a motivation to continue to persecute Tamils more generally. While the Tribunal accepts that there continues to be a large military presence in the north, the Tribunal accepts the DFAT Thematic Report assessment that monitoring is most likely to be most acute for high-profile former LTTE members who have been released from rehabilitation or prison and for those suspected to be planning terrorist or serious criminal acts. The Tribunal notes the UNHCR Eligibility Guidelines indicates the UNHCR collects post-return monitoring data, and while noting the guidelines are not exhaustive, the Tribunal notes they do not include being a returnee or failed asylum seeker in the risk profiles. The Tribunal accepts the DFAT Thematic Report assessment that while many low-profile former members of the LTTE experience a persistent low level of societal discrimination, it is likely that this societal discrimination remains at a low-level because of an understanding among the Tamil population in the north and east that many people were forced to participate in LTTE activities. The Tribunal notes that there is no suggestion that the applicant was ever a member, or perceived to be a member of the LTTE, so it is unlikely he will experience even this low level societal discrimination.

On the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to his place of origin the applicant will suffer serious harm for reasons of his illegal departure from Sri Lanka, or because he claimed asylum in Australia being a western country, and for being a failed asylum seeker returning to Sri Lanka.

Conclusion

On the evidence before it the Tribunal does not accept that there is a real chance the applicant will be killed or suffer serious harm, abduction, torture, detention, physical harassment, physical assault and possibly death, or be denied the ability to travel freely outside his area, earn a livelihood and access basic services that would threaten his ability to subsist, by the Sri Lankan Government or authorities, or the Sri Lankan Army, Navy, CID, EPDP, criminal elements connected to the Sri Lankan smuggling networks.

Having considered all the evidence and submissions before it, and the applicant’s personal circumstances, both individually and cumulatively, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, or harm of any kind, on return to Sri Lanka for the reasons he has claimed.

Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.

Are there 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 that he will suffer significant harm?

The Tribunal has also considered the applicant’s claims and the written and oral submissions having regard to the complementary protection provisions.

For the reasons noted above the Tribunal does not accept that there is a real risk the applicant will suffer significant harm, or harm of any kind on return to Sri Lanka for the reasons he has claimed. The Tribunal does not accept that he was or is of any adverse interest to anyone in Sri Lanka.

The Tribunal accepts that there is a real risk that the applicant will be arrested at the airport in Sri Lanka and that he could be placed in remand for a relatively brief period while awaiting a bail hearing, and would later be fined if found guilty of breaching the I&E Act. The Tribunal accepts that prison conditions in Sri Lanka are poor. For the reasons given above the Tribunal does not accept the applicant will be mistreated while in custody or remand, and it does not accept there is a real risk that he will be subjected to ‘torture’ as defined. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[11] The Tribunal does not accept that the evidence before the Tribunal indicates an intention on the part of the Sri Lankan authorities or anyone to intentionally inflict pain or suffering or intend to cause extreme humiliation on people while in prison. Therefore spending a number of days in such a prison does not amount to ‘significant harm’ as defined. While a fine may be considered punishment, the Tribunal does not consider, on the information before it, that the imposition of such a fine would be intended to cause or causes extreme humiliation which is unreasonable (as stipulated by the definition of degrading treatment or punishment in s.5(1)) or that the imposition of a fine would cause (or was intended to cause) severe pain or suffering, or pain or suffering where the act or omission could reasonably be regarded as cruel or inhuman in nature or that the imposition of a fine in these circumstances could be regarded as cruel or inhuman (within the meaning of the definition of 'cruel or inhuman treatment or punishment' in s.5(1)). Nor is the Tribunal satisfied that the evidence before it indicates that on return to his place of origin there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment. 

[11] SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

Therefore, having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that there are 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 that the applicant will suffer significant harm.

CONCLUSION

The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

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

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

Chris Thwaites
Member  8 July 2015

ATTACHMENT A - RELEVANT LAW

In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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; 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.’

Refugee criterion

Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

(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.

In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provides that Article 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

1. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

   ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

2. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

   ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   Complementary protection criterion

3. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.