1310634 (Refugee)

[2016] AATA 3646

1310634 (Refugee) [2016] AATA 3646 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1310634

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:George Haddad

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2016 at 11:36am

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 is [an age] year old who claims to be a citizen of Sri Lanka. The applicant arrived in Australia on Christmas Island [in] July 2012. He seeks to engage Australia’s protection obligations. He does not want to return to Sri Lanka where he claims to fear harm on the basis of his Tamil ethnicity, his imputed political opinion and membership of a particular social group , applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2013.

3. The applicant applied for review of the delegate’s decision on 29 July 2013. He provided a copy of the delegate’s decision record with the review application and appointed a registered migration agent as his representative and authorised recipient.

4. The applicant appeared before the Tribunal on 17 February 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 representative attended the Tribunal hearing.

5. The issues in the present case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons contained in the Refugee Convention; and if not, whether 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 he will suffer significant harm.

6. For the following reasons the Tribunal has concluded that the decision of the delegate should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Sri Lanka?

7. The applicant set out his claims in a statement attached to the protection visa application. He was interviewed by an immigration officer on arrival and again in relation to his protection claims in March 2013.

8. The applicant’s representative provided written submissions to the Tribunal prior to the hearing dated 1 November 2014, 26 November 2014 and 11 February 2015 with reference to country information from sources including the Department of Foreign Affairs and Trade (DFAT) reports dated July 2013.

9. The Tribunal granted requests for postponement of the hearing and by letter dated 1 December 2014 inviting the applicant to attend a hearing on 17 February 2015 it provided a copy of the DFAT Country Report – Sri Lanka and DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014.

10. In assessing the applicant’s claims, I have had regard to the Department’s file relating to the protection visa application, the primary decision record, a copy of which the applicant provided to the Tribunal, the written submissions made prior to and after the hearing from the applicant’s representative and country information referred to and which I discussed during the hearing and that referred to by the representative in submissions.  

    Country of reference for assessment of claims

11. The Tribunal finds the applicant is a national of Sri Lanka. He has consistently maintained that he is an ethnic Tamil, born in [Village 1], [District 1], North Western Province of Sri Lanka. There is no evidence to suggest that he is a national of any other country and he made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home town, the place he resided prior to departing Sri Lanka (and where his family continue to reside), to be his home region.

    The applicant’s claims

12. As noted earlier the applicant set out his claims in a written statement attached to his protection visa application. He states that he was born in [Village 1], [District 1], North Western Province, Sri Lanka. He is an ethnic Tamil and a Hindu. He has never married and has no children.

13. He fled Sri Lanka illegally on a boat which departed [in] June 2012 because his life was at risk due to his Tamil ethnicity and imputed political opinion of being involved with the LTTE.

14. In written submissions to the Tribunal the applicant’s representative adds the further claim of the applicant’s membership of a particular social group ‘failed asylum seekers returning to Sri Lanka’.

15. At hearing, the applicant confirmed his personal details and wished to correct details of his trip to [Country 1] mentioned in his application for the visa. He said that he travelled in [year] not in [the previous year] as stated in the visa application. The other details remain correct; he travelled with the school as a [age]-year old student to participate in a [sporting competition].

16. His mother remains in Sri Lanka. She makes and sells [products]. She also works in [an occupation] job at the market.

17. He has one [sibling] now [age] years of age and has completed schooling. [They work] with his mother. He has [another sibling], a secondary school student.

18. Asked if he is in contact with his family, the applicant replied that he usually called and spoke with his family twice a week. But there’s been no contact in the last month.

    The applicant’s Tamil ethnicity, his imputed political opinion/ perceived opposition to government

    His father’s involvement with the LTTE

19. The applicant states in his written statement that his father was [an occupation] and for six months he [worked] in an area around 8-9 hours away from their home in Eastern Province and returned home for six months. On his [period away from home], he stayed in a house next to which was another house where weapons belonging to the LTTE were stored. His father was implicated with the weapons and arrested by the police. The police took details from his father and let him go.

20. The applicant recalls that sometime in 2007 his father was kidnapped by the LTTE and disappeared. They lost contact with him and despite reporting him missing; the police did not bother to search for him. He re-appeared at home some two years later, showing visible scars resulting from torture he received from the LTTE and the police. He told the family that LTTE had let him go free. The police came around a week after his father returned to question him. He was held for one day, tortured and forced to tell them that he had been kidnapped by the LTTE. He was released but the police returned to their home on several occasions, usually at night, to check for weapons.

21. Two or three weeks after his return, the applicant’s father began [working] around their village near [Village 1] and was harassed by the Sinhalese in their village because they knew of his involvement with the LTTE.

22. I accept that the applicant’s father was kidnapped by the LTTE and returned home two years later, country information confirms that during that period such kidnappings occurred. I accept that on his return in 2009 his father was held for one day and questioned by the authorities and then released. I accept that the authorities conducted searches on several occasions after his release as country information also indicates that at the time the applicant recalls his father’s return, near to or around the end of the war, the Sri Lankan authorities conducted such searches. On the basis of the evidence and claims I do not accept that the applicant’s father had a high LTTE profile ascribed to him by the authorities or that he was of particular interest to the authorities.

    The [transport] incident –

23. In his statement of claims the applicant states that [in] December 2009, he was told by his cousin that his father was killed in a [work] incident. He states that while his father was [working], the Sinhalese and the police got together in a [vehicle] and [crashed into his father’s vehicle] killing his father and injuring a second occupant, another Tamil man. The family reported his father’s death to the police and made a complaint. The police said they would look into it but never did.

24. At the hearing, the applicant stated that his uncle had told him and that he had witnessed the incident.

25. I accept that the applicant’s father died in a [transport] accident. I accept that a family member told the applicant of the incident.

26. I have considered the inconsistency in the applicant’s oral evidence at hearing where he said it was his uncle that had told him and that he had witnessed the incident. I have also considered the evidence and my findings above that the applicant’s father after 2 years with the LTTE was held for one day and released by the authorities, he was not of particular interest to the authorities. I do not accept that the Sri Lankan authorities in 2009 would have needed to contrive a [transport] accident if they had an interest in or security concern about the applicant’s father.

27. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that ‘if the applicant's account appears to be credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196), However the Handbook also states (at paragraph 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

28. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

29. In relation to this incident on questioning the applicant and considering his previous account and my credibility concerns I formed the view that the applicant was not being truthful in telling the account of this incident. In not accepting that it was a staged accident, I had regard to the low level of interest the authorities had in the applicant’s father based on holding him for one day and then releasing him, especially at the time of near the end of the war. 

30. I do not accept that the applicant’s uncle witnessed the incident or that it was a deliberate act by members of the Sinhalese community. I do not accept that the police conspired with members of the Sinhalese community to kill the applicant’s father and disguise the incident as an accident. I have also considered the applicant’s statement that when the family reported the incident to the police, the police said they would look into it but did nothing. I do not accept the implication in the statement that the police were seeking to cover up some involvement by the police or a deliberate act by the Sinhalese community to kill the applicant’s father. I have taken into account the applicant’s young age at the time of the incident but I do not accept that his young age explains the inconsistencies. I formed the view that the applicant was embellishing the incident of a [transport] accident, as he embellished elsewhere I will discuss soon, in order to strengthen his claims for protection.

    Events after his father’s death

31. The applicant claims that after his father’s death the Sinhalese and the police began to harass and torture the applicant because they assumed that he too was involved with the LTTE. The police searched the house and took the applicant to the police station and interrogated him for two hours then released him. But the police continued to come around every day to check for weapons. He faced harassment and abuse every day from Sinhalese people and the police. People would throw rocks at him and shout abuse.

32. Eventually his mother feared that he might suffer the same fate as his father and get killed. She decided he should leave Sri Lanka and made arrangements with a people smuggler and paid for everything.

33. His mother has told him that the police continue to come around every couple of days to ask for the applicant’s whereabouts. His mother and siblings suffer constant abuse from the Sinhalese people because of his father’s involvement with the LTTE.

34. The applicant concludes that if he were to return to Sri Lanka he would be tortured and killed because he would be suspected of involvement with the LTTE.

35. During the hearing, at one point I asked the applicant if he had experienced any other difficulties; he said that because he was taken in for questioning by the police, the Sinhalese people in the community asked him if he was LTTE. I accept as plausible that such an interest would arise by members of the Sinhalese community by those who came to know that the applicant was questioned, especially in 2009.

36. But the applicant added that there were two incidents that occurred which he had not raised with the Department at any of the interviews or in his written statement of claims.

37. He said that around six to seven months after his father’s death he was walking alone at night when some Sinhalese people shouted

    ‘there’s another LTTE man’s son. We hope you’re not LTTE and will threaten us. If you roam around at night, you will be killed’

38. He continued that five months later or around one year after his father’s death, he was returning from a sports meet around 8 pm when army officers stopped him and asked why he was out so late. They then said to him:

    ‘Oh you’re that LTTE man. If you’re out late at night again, you’ll be dead like your father’

39. I asked the applicant why he had not raised these incidents earlier, in his interviews with the Department or in his written statement. He replied ‘I may have missed that’.

40. The applicant added further claims of previous incidents that he had not raised previously; and of a very recent incident at their family home (which of course he could not have raised previously). But I put to him that I was having serious concern with the credibility of his evidence in relation to these incidents and may not accept that they actually happened. On my suggestion he took an adjournment to discuss my concerns with the credibility of the additional claims and evidence with his representative and comment if he wished.

41. I also granted additional time to receive post hearing submissions. Several requests for extensions of time were subsequently granted.

42. In the representative’s post-hearing submission relating to the above incidents, it is argued that the applicant was very young when these events occurred and his ability to recall is linked to his young age. He does not understand the process of seeking protection and little experience in dealing with authorities willing to offer protection. The submission argues that consideration must be given to these factors and the applicant’s ability to provide information, recall dates, comment on information and explain his claims for protection, errors, omissions or misunderstandings cannot be taken to detract from the applicant’s credibility and honesty.

43. I have considered the applicant’s young age which may have led to difficulty in recalling dates, although my concern did not relate to specific dates. I accept that the applicant may have been subjected to low level verbal abuse by members of the community at that time but I remain of the view that the applicant has sought to embellish the extent of this abuse. I do not accept that the verbal abuse rises to the level of serious or significant harm. I do not accept the account of the second incident with the army officers. The account of the army officers’ reference’ you’ll be dead like your father’ implies that the police had a hand in his father’s death and the army was also aware of the police involvement. It appears to seek to lend weight to his claim that the [transport] accident was not an accident but a deliberate act to kill his father in which the authorities were involved. I do not accept that in 2009 the authorities resorted to such elaborate methods to disguise dealing with LTTE persons of interest. I have rejected earlier that the [transport] incident was deliberate and any involvement by the authorities. For these reasons I do not accept that the incident of that claimed encounter with the army officers occurred. In my view the applicant fabricated this account to embellish his claims for protection.

44. I accept that the applicant was questioned by the Sri Lankan authorities and released after two hours.

45. I accept that after his father’s death the authorities searched the house for weapons.

46. I accept that the applicant and his family were verbally abused by individuals and people threw rocks at the applicant because of their Tamil ethnicity and his father’s connection with the LTTE. I do not accept that the abuse rises to the level of serious or significant harm.

47. I do not accept the claim of continued interest by the police to verbally abuse him as it is inconsistent with his evidence that they released him after two hours of questioning. If the authorities had any subsequent security interest in the applicant related to LTTE connection, in 2009 the authorities would have arrested and held the applicant and not simply verbally taunted him.

48. For the same reason I find the claim that the authorities returned to search the house for weapons every day to be implausible. I also find implausible the claim that his mother told him (since he departed Sri Lanka) the authorities continue to come around every couple of days to ask for his whereabouts. The applicant stated that he travelled to [Country 1] in [year], at hearing he corrected his written statement and stated that the trip was in [the following year]. He went with the school’s [sporting] team. He does not claim to have had any difficulties with the authorities departing or returning to Sri Lanka. He was around [age] years of age. I do not accept that if the Sri Lankan police or army had an interest in the applicant he would have travelled out of and into Sri Lanka without incident.  I do not accept that the authorities had any interest in the applicant because of his father’s connection with the LTTE or for any imputed political opinion as the son of an LTTE man or perceived opposition to the government. I find that the authorities in Sri Lanka had no interest in the applicant after the two hours of questioning.

    The attack on the house [in] December 2014

1. In the earlier part of the hearing the applicant stated that he had been in regular contact with his family in Sri Lanka but that he had lost contact in the past month.

2. The applicant went on to state that his family are facing problems because of his case. He said that they live in a Sinhalese dominated area. A mob attacked their home. They broke window glass; ransacked the house and cut off the landline; his [sibling] sustained an injury to [a body part]. He said he spoke with his mother [a date in] December 2014 and she told him that after worship [a few days earlier], the Sinhalese people in the village harassed her and told her not to participate in worship. He last spoke with his mother [early in] January 2015.  After failed attempts to call his mother at home, he called a neighbour who called his mother over and he talked with her for about half an hour. She told him the incident [happened], on [a date in] December 2014. The applicant said that there are few Tamil families remaining in his village. There is a Hindu temple, a Christian temple and a Buddhist temple. His family was always involved in the Hindu temple. Since his father died in 2009, the Sinhalese people in the village have told his mother not to be involved in worship activities and to move away from the village. They used mild verbal abuse in the past but this time a mob of them attacked and damaged the house. His family continued to live at the house and his mother has reported the incident to the police. But she plans to move for their safety and live with relatives around a 3-hour bus trip away from his village.

3. I asked if he has been in contact with his mother since [that date in] January 2015. He said he tried but the landline is still cut off. Asked if he tried to call the neighbours. He said he did not, but then said that he did and they told him that they have seen his [family members] are still living at home, but they are scared to have his mother come over to their house and take a call. Asked if he called his relatives to enquire about his family, he said he does not have their phone number.  He said it may be that his mother cannot afford to repair the landline. Or when she reaches the relatives safely she would call him. Or she may have tried to call him while he was at work and his mobile phone is turned off. I noted that 5-6 weeks have passed since he became aware of the claimed risk his family faces.

4. I indicated that I had serious doubt about the credibility of this claim because of the inconsistencies in the evidence, where the applicant did not know at first of the whereabouts or circumstances of his family but later he appeared to know where they were and details of their circumstances. I also had doubts because the level of concern about the lack of contact shown by the applicant was at odds with the level of danger he was ascribing to his family’s safety. He did not try to call home because the landline was cut. At first, when I asked if he called the neighbours to enquire about his family he said he did not call the neighbours.  Later he said the neighbours are trying but were too afraid to call his mother over from their house to take a call. He said he did not try to call relatives because they live far away or he did not have their phone number. He speculated that his mother might have called his mobile while he was at work but while his phone was turned off. After the adjournment of the hearing and In response to my concern, he requested time to obtain the complaint to police report and application to repair the landline to support his claim and allay my concerns about the credibility of the claim.

5. In the post hearing submission, the representative provides that the applicant has instructed that he has contacted his mother but is unable to provide the documents because his mother and siblings are no longer living in the family home because it is not safe. His mother believes she has a copy of the police report in the house but she cannot go to collect it fearing for her safety. She also fears going to the police to obtain a copy. His mother is trying to obtain a copy of report regarding the repair to the landline.

6. The representative made further requests for additional time to provide further supporting documents – requests were granted to 2 April, 16 April and 23 April 2015 but no further documents or contact was received.

7. Given the above and my concerns about the credibility of the claim of the attack on the house expressed above, I do not accept that the attack took place at all. I do not accept that his mother and siblings have left the family home fearing for their safety or that they have moved and are living with relatives in [another town] where they are facing danger as also claimed  in the post hearing submission.  I find that the applicant has fabricated this event to strengthen his claim for protection.

8. In making the above claim, I have also considered an implied claim that he and his family suffer persecution as Hindus. He has not otherwise made a claim on this ground elsewhere. The Sri Lankan constitution enshrines freedom of religion and belief notwithstanding it gives Buddhism a ‘foremost place’. DFAT assesses there is little official discrimination on the basis of religion. Students are able to study their choice of Buddhism, Hindu, Muslim and Christian religions in most public and private schools. There are public schools for Hindu students. Country information however does confirm attacks throughout Sri Lanka with the majority of cases against evangelical Christian churches. DFAT also assesses that most members of religious groups in Sri Lanka are able to practice their faith unmolested.[1] I accept that the applicant’s mother and or the family suffered verbal abuse and harassment from community members because of their Hindu religion. However, on the basis of the country information I am satisfied that the applicant and his family are able to practice religion freely protected by Sri Lankan law and largely unmolested in their worship and practice. I do not accept that the abuse and harassment rises to the level of serious or significant harm.

   Claim of previous illegal departure in 2011

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

9. In the discussion during the hearing, I put to the applicant that on the evidence relating to his father’s treatment after returning from two years’ absence, I consider his profile of involvement with the LTTE to be low. I consider the applicant’s profile by association to also be low. On the basis of reports including the DFAT reports, I may not accept that he would face any harm because of his ethnicity as a Tamil or because of his father’s association with the LTTE prior to 2009 or for perceived opposition to government. I also may not accept that he would face any serious or significant harm on the basis of his religion as a Hindu (see DFAT reports referred to above at ‘Religion’). I indicated that I accept on the basis of reports including DFAT reports that Tamils suffer low levels of social and economic discrimination but I may not accept it amounts to serious or significant harm. I invited the applicant to comment.

10. The applicant said that he wished to add information about illegal departure before he comments on the information I put to him.

11. The applicant stated that he had made an earlier attempt to depart Sri Lanka illegally; and was arrested and jailed. He was then bailed with a summons to re-appear but subsequently left Sri Lanka breaching bail. He fears that he might face a jail sentence if he were to return.

12. Again, I asked the applicant why he did not refer to this serious incident in his written claims or at the two interviews with the Department. He replied that he did not realise it was serious. A friend recently told him to mention it to the Tribunal at review. His friend told him that he knows of someone with similar circumstances and was jailed on returning to Sri Lanka.

13. I put to the applicant that it appears to me to be incomprehensible that he would not consider a prior arrest; being jailed and breaching bail as not serious until a friend mentioned it to him recently. I indicated that I had very serious concerns about the credibility of this evidence and may not accept that it occurred and invited him to consider my concerns during the adjournment along with my other concerns relating to the other incidents I discussed.

14. On resumption from the adjournment of the hearing the applicant stated that in relation to my concerns regarding the credibility of his claim of a previous attempt to depart illegally, it occurred in September 2011. He said he has documents, a summons which he will attempt to obtain through his mother and provide to the Tribunal.

15. Similarly to the claim of the attack on the house, the applicant requested time to obtain documents to demonstrate the event took place. But for the same reasons as those relating to the attack on the house, the post hearing submission states that his mother is unable to access these documents because of fear of returning to the house. The requests for additional extensions of time to 2 April, 16 April and 23 April 2015 also applied to providing further supporting documents. As noted earlier the Tribunal did not receive any further documents or contact.

16. The post hearing submission argues that lack of corroborating evidence is not evidence that a claim lacks credibility. I accept this statement. The lack of corroborating evidence is not the reason the Tribunal has had difficulty with the credibility of the claim as expressed above. The Tribunal did not request or mention corroborative evidence, the applicant requested time to provide it.

17. I do not accept that the applicant was arrested, charged, jailed, and released on bail to re-appear for attempting to depart Sri Lanka illegally in September 2011. I find that the applicant has fabricated these accounts to strengthen his claim for protection.

18. I have considered the claims and evidence individually and cumulatively.

19. I have also had regard to and considered the country information referred to in submissions from the applicant’s representative. In these submissions reference is made to the UNHCR reports of certain concerns expressed by the Commissioner in relation to failure to adequately separate military and civilian roles particularly in the North and East and disadvantages arising from shortage of Tamil-speaking police and staff. However, the submission does not acknowledge elsewhere reported by the UNHCR of individuals with certain profiles of real or perceived links to the LTTE that may give rise to international refugee protection[2] . The Tribunal does not treat the list in this report as exhaustive and has acknowledged that the applicant’s father spent two years with the LTTE. It is relevant though that given the applicant’s father was questioned once and released on his return in 2009 from two years with the LTTE at which time security concerns by the Sri Lankan authorities were considerably more heightened than the present. For this reason I do not accept that his father was of particular interest to the authorities. I am not satisfied that the applicant’s father could be ascribed the attributes of a person with a high profile in the LTTE. Much less was the applicant perceived to be when he was questioned for a couple of hours after his father’s death in 2009.

    [2] United Nations High Commissioner for Refugees (UNHCR’s) Eligibility Guidelines December 2012

20. Other references in the submissions include the Unites States reports on human rights practices in Sri Lanka; the United Kingdom Upper Tribunal decision[3] (upheld by the Court of Appeal in England and Wales[4]) and United Kingdom Home Office reports as well as several other sources.

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

    [4] MP and NT (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829

21. I have considered the comments in reference to these reports. I note that the UK Upper Tribunal decision comprehensively reviewed all information on Sri Lanka and concluded that the approach by authorities in Sri Lanka was based on sophisticated intelligence with regards to activities within Sri Lanka and abroad. Similarly to my findings in relation to the UNHCR’s Guidelines, the applicant does not come within any of the categories of persons identified by the Upper Tribunal as would be at real risk of persecution or serious harm on return to Sri Lanka.

22. Many of the reports referred to do not apply to the low profile the applicant’s father would have had based on the evidence before the Tribunal. Some information is superseded with more recent information which does not support concerns in earlier reports.

23. I have also noted the concerns expressed in relation to the DFAT reports not identifying its sources, procedures for gathering evidence being “non-exhaustive and perfunctory” particularly in relation to failed asylum seekers returning to their districts of origin. The submission cautions reliance on DFAT reports.

24. In relation to the critique of DFAT reports, I do not consider it inappropriate, unacceptable or lacking that a report by the Department of Foreign Affairs does not name its sources. I consider the attributions given in the DFAT reports to be appropriate.  I have not relied solely on information from DFAT reports. Insofar as I accept and rely on reports from DFAT, I note that I have not found current reports from other sources usually consulted for country information that significantly contradict the relevant information in the DFAT report. I attach significant weight to information gathered by Australian government officials in the country of reference.

25. In relation to his claims I put to the applicant that information publicly available indicates significant changes have been made since the election of the new government. For example the governor in the north, a former retired army officer, has been replaced by a former diplomat. Restrictions on journalists operating and foreigners moving through the area have been lifted. Reports indicate that these changes are seen as having significantly improved and normalised the situation for Tamils.[5]

    [5] Refworld.org. Group 22 – Information Centre Asylum and Migration Briefing Notes 26 January 2015 p8-9; and

26. I have considered whether on his return to Sri Lanka, the applicant will face a real chance of serious harm amounting to a well founded fear of persecution because of the claimed incidents in the past. I have found that he will face some discrimination and social and economic disadvantage because of his Tamil ethnicity and Hindu religion but that it does not rise to the level of serious harm. I have not accepted that he will face any serious harm from the authorities because of his ethnicity, his religion, any connection with the LTTE due to his father’s two years with the LTTE; or perception of opposition to the government of Sri Lanka. I have not accepted that his father was killed in a [transport] incident deliberately by the Sinhalese community or that there was any involvement by the Sri Lankan police in that incident or that the police were involved in a cover up in handling the report the family made about the [transport] incident. I have not accepted that he was stopped by army officers and threatened. I have not accepted the claim of the attack on the house in December 2014. I have not accepted his claim of previous failed attempt to depart Sri Lanka illegally in 2011 or that he was arrested, jailed, bailed on summons to reappear and subsequently breached bail. I have not accepted that the authorities in Sri Lanka have had any ongoing interest in the applicant after they released him following two hours being held and questioned after his father’s death.

27. On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm amounting to a well-founded fear of persecution in the reasonably foreseeable future because of his Tamil ethnicity or as a young Tamil male and a Hindu, or because of being imputed with political opinion or perceived opposition to the government. 

28. I have considered the consequences the applicant will face if he were to be returned to Sri Lanka.

    Membership of a particular social group – returning as a failed asylum seeker and illegal departure from Sri Lanka

    The applicant also fears returning to Sri Lanka as a failed asylum seeker. He stated that the Sri Lankan authorities arrest, detain, interrogate and torture failed asylum seekers on return. It would also lead the authorities to further suspect involvement with the LTTE. He would suffer arbitrary arrest and detention, imprisonment, physical assault, torture and possibly death at the hands of the Sri Lankan authorities because of his Tamil ethnicity and imputed political opinion of being involved with the LTTE. I have made findings on his claims of imputed political opinion, and his ethnicity among other things.

29. In relation to whether the applicant will face persecution if he were to return as a failed asylum seeker having departed Sri Lanka illegally in July 2012, I accept that the applicant entered Australia by boat without a visa. At the hearing I discussed with the applicant the country reports, notably the DFAT report referring to all Sri Lankans returning and taken to have sought asylum.

30. Independent sources indicate that between 1983 and May 2009, the Liberation Tigers of Tamil Eelam (LTTE) waged a military campaign against the Sri Lankan authorities with the main aim of establishing a separate Tamil state in the north and east, leading to a serious civil conflict which lasted until May 2009 when the Government announced its military victory over the LTTE and complete territorial control over Sri Lanka. DFAT reports that at its peak in 2004, the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka, with an armed force of approximately 18,000 combatants. DFAT reports that over the course of the conflict hundreds of thousands of people were displaced and tens of thousands of people were killed. The UN found credible allegations that both sides committed crimes against civilians. Other sources indicate that the peace that was established with the defeat of the LTTE in May 2009 continued uninterrupted through 2013, with not a single terrorism related incident reported through 2012[6]

    [6] South Asia Terrorism Portal Sri Lanka Assessment 2014 cited in UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.1.4

31. The UNHCR assessment is that protection should no longer be presumed as being needed for Sri Lankans of Tamil ethnicity from the north of the country. Other sources indicate that the focus of the Sri Lankan government’s current concern is on persons perceived to be a threat to the integrity of Sri Lanka as a single state because of any perceived significant role in post-war separatist activities or renewal of hostilities (see UNHCR Eligibility Guidelines; DFAT Report – Sri Lanka 16 February 2015 and 18 December 20915).

32. I discussed with the applicant his claims of fear of retuning having departed Sri Lanka illegally and as a failed asylum seeker. I referred to the DFAT reports indicating that the process of returnees at the airport (those who departed Sri Lanka unlawfully under Sri Lankan law) apply to all Sri Lankans and not discriminatorily to Tamils.[7]

    [7] DFAT Report – Sri Lanka 3 October 2014 paragraphs 4.20 and 4.21; 5.22-5.33

33. The applicant also expressed fear of returning as a Tamil because of a media report. The applicant showed a video clip at the hearing and which was addressed in the post hearing submission. The submission provides that media reports show a Tamil National Alliance (TNA) Member of Parliament, P. Ariyanendhiran, warning that the Sri Lankan government ‘invites migrated Tamils to return back to their motherland’ and upon their arrival secretly arrests them. The media report adds that arrests of Tamil youths at the airport ‘continue[d] to take place unabatedly’. Despite regime change in Sri Lanka. The MP’s warnings follow reports of one young Tamil and two others being arrested on their return from the Middle East. According to the Tamil Guardian, the two were arrested had briefly been affiliated with the LTTE but had left the organisation a long time before; and had not had any difficulties previously visiting their families or returning to Sri Lanka. It is stated in the submission that the reports are evidence that it is not only Tamils with significant profiles who are at risk and that previous ability to travel to and from Sri Lanka is no guarantee of subsequent safety. The submission refers to another MP and TNA spokesman, Suresh Premachandran, also warning Tamils not to return to Sri Lanka arguing that despite the change of government ‘there is no change in the administrative system as the same people prevail at the administering posts’. It also refers to reports from other Tamil newspapers alleging the detention of seven people from the north east  and ten Tamils detained on their return from the Middle-East; and refers to a statement from the Sri Lankan Minister for Justice announcing the returned asylum seekers will face the law of the country.

1. I have considered the reports and allegations referred to above. They are allegations. What followed the alleged arrests and/or detention and questioning is not reported. The statement attributed to the Justice Minister is unremarkable. The Tribunal discussed with the applicant and the Tribunal accepts that failed asylum seekers returning to Sri Lanka will undergo checks, questioning, and as a young Tamil speaker, he is likely to be questioned about LTTE links or activities in and outside Sri Lanka. The media reports are not inconsistent with the reports I discussed with the applicant including the DFAT reports. Authorities will question persons of interest. On the basis of information from the reports I discussed with the applicant, I do not accept the submission that all Tamils, or young Tamils with low LTTE associations around the end of the civil war with no separatist activities are at risk of serious harm upon returning to Sri Lanka.

2. I accept that on returning to Sri Lanka the applicant will face questioning at the airport about his activities during the time he has been outside of Sri Lanka. As a Tamil, he is also likely to be questioned about any links with the LTTE. I do not accept the representative’s submission ascribing the level of danger and risk to the applicant returning as a failed asylum seeker. Having regard to the reports to which I referred above and given there is no submission or suggestion that the applicant has engaged in any political activities or separatist activities since he left Sri Lanka, the questioning is not reasonably likely to result in the applicant being considered a security risk by the authorities or that he is suspected of being a member or supporter of the LTTE. For these reasons, the Tribunal does not accept that there is a real chance that the applicant will face serious harm at the airport on the basis of returning as a failed Tamil asylum seeker now or in the reasonably foreseeable future.

3. I accept that on his return to his village near [Village 1], he will be noted for his absence and return. He is likely to be questioned by the Sri Lankan authorities. He is also likely to face low level discrimination and social and economic disadvantage. I note that [Village 1] is described as a “[deleted]” and its people are “[general information deleted]”[8].  “[Information deleted.]”[9]

   [8] [Information deleted.]

   [9] [Information deleted.]

4. Given the findings above, I do not accept that the applicant will face a real chance of serious harm, now or in the reasonably foreseeable future in his place of origin because he is a Tamil and a failed asylum seeker.

5. In relation to whether the applicant will face harm on the basis of his illegal departure I accept that the applicant will be taken to have breached Sri Lanka’s departure laws on the basis of his irregular departure by boat. DFAT reports referred to earlier indicate that most or all Sri Lankans returning from Australia will be questioned by the authorities and the police on arrival at the airport in Colombo. I accept that his illegal departure will result in the applicant being charged under Sri Lanka’s departure laws. Once charged with such offences, he will be taken to appear at the Magistrates’ Court in Negombo and as in most cases according to advice from DFAT, he will be released on bail immediately (unless he arrives on the weekend where he may be held for a few days) and later fined. The DFAT advice in the reports referred to earlier indicates that the departure laws apply to all Sri Lankans regardless of ethnicity or religion and may therefore constitute laws of general application.

6. Based on the evidence before it, the Tribunal finds therefore that the applicant will be questioned on arrival at Colombo international airport, charged, taken to court and may be held on remand for some days awaiting a bail hearing or released on bail immediately and later fined.  The DFAT Advice includes reports of a small number of alleged torture or mistreatment by returnees to Sri Lanka as failed asylum seekers. Many of these allegations are made by third parties and have not been able to be verified, however, DFAT also notes that for the many thousands of returned asylum seekers since 2009 from Australia and other countries the assessment of risk of torture or mistreatment is low including for breaches of the departure laws. I also note the applicant’s travel without raising any interest by the authorities from Sri Lanka to [Country 1] and return to Sri Lanka in [year].

7. On the evidence before it, the Tribunal finds that the applicant will be granted bail on appearing in court and if convicted of charges under the departure laws of Sri Lanka he will receive a fine.  While I accept reports indicate that prison conditions in Sri Lanka are generally poor but as noted earlier, the DFAT report indicates that all Sri Lankans are treated the same way regardless of religion or ethnicity and there is no evidence or information to indicate mistreatment of returnees held on remand. The Tribunal finds that the applicant will not be treated differently because of being convicted of breaches of departure laws for any Convention reason.

8. Further, I am satisfied that the departure laws in Sri Lanka are not applied with discriminatory intent or effect; nor are they applied selectively or in a discriminatory manner for a Convention reason. The questioning and subsequent events described above which the applicant will or is very likely to face would be under a law of general application and not in any discriminatory way because the applicant is a Tamil, a young Tamil and a Hindu. The Tribunal finds therefore that any brief period the applicant may be required to spend in jail, conviction and fine does not amount to persecution under the Convention.

9. I have considered whether the applicant will face a real chance of serious harm on the basis of his claims separately and cumulatively – if the effect each claim separately or the combined characteristics of being a Tamil, young Tamil male and Hindu, actual or imputed political opinion suspected of LTTE connections or a sympathiser taken with his father’s abduction by the LTTE for two years between 2007 and 2009 and his father then suspected of membership of LTTE, the applicant being perceived to be anti-government, having departed illegally and returning involuntarily as a failed asylum seeker from Australia would mean that there is a real chance of facing serious harm. Given the above findings I do not accept that there is a real chance the applicant will face serious harm for reasons of political opinion, race, religion, nationality or membership of a particular social group if he were to return to Sri Lanka now or in the foreseeable future.

10. 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).

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm?

11. I have not accepted there to be a real chance that the applicant will suffer serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future on the basis of his Tamil ethnicity, as young Tamil Hindu from the North Western province, his actual or imputed political opinion, perceived to have or have had connections with the LTTE or anti-government, his illegal departure from Sri Lanka or returning as a failed asylum seeker from Australia not retuning voluntarily to Sri Lanka. I have accepted that he will face low levels of discrimination and social and economic disadvantage because of his ethnicity and Hindu religion but that it does not rise to the level of serious harm. I have accepted that he will be questioned on arrival at the airport and in his village; that he will be charged under Sri Lanka’s departure laws and that these laws are of general application to all Sri Lankan nationals regardless of race, ethnicity of religion. I accepted that the applicant will be held on remand for a short period in relation to the charges and conviction leading to a fine but that this does not rise to the level of serious harm.  I have found that he will not face a real chance of serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future because of any of the Convention reasons.  In MIAC v ZQRB [2013] FCAFC 33, The Full Court of the Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test in the assessment of ‘well-founded fear’.  I have also had regard to the Procedural Advice Manual. As I did not accept the applicant has experienced any serious harm in the past and I have not accepted the submissions from the applicant’s representative as establishing a basis for serious or significant harm and there is no other basis before me to support 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 he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel and inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept 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 he will suffer significant harm as that term is defined in s36(2A). Therefore he does not satisfy the criterion of s.36(2)(aa). 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.

    George Haddad
    Senior Member

    
    

    ATTACHMENT

    RELEVANT LAW

13. 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.

    Refugee criterion

14. 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).

15. 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.

16. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

17. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

18. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

100.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

101.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

102.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

103.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

104.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

105.   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’).

106.   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

107.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

108.   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.

Report  - Sri Lanka 16 February 2015 paragraphs 4.20 and 4.21; 5.22 – 5.33
DFAT Report – Sri Lanka 18 December 2015 paragraphs 4.22 and 4.23; 5.27 – 5.37