1311405 (Refugee)

[2015] AATA 3255

1311405 (Refugee) [2015] AATA 3255 (6 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1311405

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Magda Wysocka

DATE:6 August 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 06 August 2015 at 4:09pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2013. A copy of the decision record was provided with the application for review.

   RELEVANT LAW

3. 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

4. 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).

5. 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.

6. 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.

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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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

14. 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’).

15. ‘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.

16. 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

17. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The applicant arrived in Australia [in] June 2012 as an unauthorised maritime arrival. He claims to be a Tamil Hindu from Jaffna district, Northern Province. His claims, having regard to his written statement, decision record and submissions are as follows:

    a.In 2004 his brother [Mr A] left home to join the LTTE. Shortly after his family received a letter from his brother confirming he had joined the LTTE. This was the last time they heard from him.

    b.In mid 2006 the Sri Lankan Army (SLA) conducted a roundup of ID cards in the applicant’s village. They confiscated his ID and told him to pick his card up at an army camp. When the applicant and other Tamils went to the camp, they were lined up as an informant was asked to identify anyone with LTTE connections. Although the applicant was scared he be identified, he was not. His details were taken and ID returned.

    c.At the end of 2007 the applicant was stopped by two SLA officers and taken to [Village 1] army camp where he was held in a small room, interrogated about his brother and beaten. In a submission to the tribunal dated November 2013 his representatives instructed the applicant was sexually assaulted during this time. He was released after two days after admitting that his brother had left to join the LTTE.

    d.After this, the SLA and CID would come to his home to conduct searches.

    e.In 2009 the applicant began receiving harassing phone calls from the CID and felt he was being monitored. The CID asked him where he was going whenever he left home.

    f.In 2010 he received two more calls from the CID asking about his brother. The harassment continued, the applicant’s house was searched and he was frequently asked about his brother.

    g.In his departmental interview, the applicant disclosed that two months prior to his departure from Sri Lanka, he was detained after a dispute between two villagers. He was questioned about one of the villagers and about his brother. His arm was tied behind his back and beaten, causing it to break. This was what led him to leave Sri Lanka.   

19. The delegate accepted that the applicant was questioned, detained, beaten and monitored during the war as a result of having a family member in the LTTE. The delegate did not accept that the 2012 incident occurred due to the late disclosure of it at the end of the departmental interview. The delegate further found that the applicant had interacted with Sri Lankan authorities on several occasions including when travelling to/from [Country 2] without incident and has remained in the same area since 2007.

20. The tribunal has had regard to submissions from the applicant’s representative dated [in]November 2013 and submissions received post-hearing [in] June 2015.

    Tribunal hearing

21. The applicant appeared before the Tribunal on 16 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent.

22. The applicant gave evidence about his background. He is 23 years and born in 1991. He was born in [Town 3] in Jaffna District. He grew up there for six years. He moved to [Town 4] in Jaffna District because there was war in [Town 3]. He lived there for seven years. He then moved to a place called [Village 1] about 10 km from [Town 4]. He lived there in his aunty’s house with his mother. Only he and his mother lived in the house. His aunty had already gone to Europe where her children lived.

23. In 2009 his brother [Mr B] moved in with them. Before that he was working [overseas]. He remained living with them and is still living in Sri Lanka with the applicant’s mother in the same house. [Mr B] is married with a child.

24. He has another brother named [Mr A] who was with the LTTE. He last heard from him in 2004. He has no other family members. His father was killed while the Indian Army was there as peacekeepers. He was walking and killed by snipers. This was in 1995.

25. He has an uncle who is a bit affluent and helped them financially but he was killed in 2006 by the Sri Lankan Army. After that his brother sent money from [overseas] and they have relatives from Europe who send them money. His mother is doing fine now. His brother and an uncle run a market.

26. He finished up to [a stated level of education]. He did not work at all and just stayed home. He has worked in the food industry in Australia.

27. He travelled previously to [Country 2] for two weeks in 2010. One of his cousins got married in [Country 2]. He wanted to flee from [Country 2] to go overseas but he couldn’t so he returned to Sri Lanka. His mother also went to the wedding but his brother did not. He left Sri Lanka in June 2012.

28. He was asked about his brother [Mr A] and when he joined the LTTE. The applicant gave evidence that it was in 2004. He did not know what had happened at the time but later they got a letter saying that he had joined the LTTE. He cannot remember how [Mr A] left but the letter identified that he had joined the LTTE. The letter came a year later. He did not read the letter; his mother did. She only told him that his brother had joined the movement. The tribunal noted that it seemed like a dangerous thing to write in a letter. He agreed but did not know how the letter reached his mother’s hands.

29. He did not hear from his brother ever again. He does not know anything about his brother’s role until someone from Vanni arrived and told him that his brother had died. This was in 2009. Those people who told him were somehow related to the applicant. They told his mother that they saw [Mr A]’s dead body. He was not at all involved about his brother’s LTTE dealings, maybe they told his mother. He has no idea.

30. The tribunal asked if anyone else was involved in the LTTE. He stated that one uncle was involved in the LTTE but was killed. This was before the applicant’s birth; his mother told him about this. He does not know anyone else in the LTTE. He himself was never involved.

31. He was asked about the problems he had in Sri Lanka due to his brother’s LTTE connections. The applicant gave evidence that once they took him to the camp and interrogated him about his brother’s whereabouts. When they forced him to answer questions, he said he did not know anything. They pointed the rifle into his eyes and told him to tell the truth or else they will kill him. He repeatedly said he knew nothing about his brother. They kept him for two days and interrogated him. They tortured him. His mother camp to the spot where he was kept and she cried and screamed. They did not allow him to be released.

32. That was in 2007. He was returning from a [sports event]. Two SLA officers arrived on a motorbike. They took him to the camp. He was riding a bike when they came on a bike and told him to follow them. He thinks that they knew that his brother was in the LTTE; that is why they started to question him.

33. They also asked questions about whether he knew the whereabouts of the rebel movement. They were torturing and abusing him and eventually at the last minute he told them that his brother had joined the LTTE but did not know about their whereabouts. He confirmed that even though they knew that already they wanted to get that out of his mouth.

34. He was asked about his charge of being sexually assaulted. He stated that he was very embarrassed about this. There was no opportunity to get any treatment.  He never spoke about this matter to anybody. It happened at nighttime; the guards who guarded him would come where he was staying. They were intoxicated and removed his clothes. He stated that he did not want to continue talking about what happened.

35. He was released because his mother came and created a big scene. Eventually as a result they let him go. They took all his details and sent him away. They returned to his house many times afterwards. They visited him daily and then the war started again and gradually their attendance would reduce unless there was some problem in the locality and they would visit. The SLA would come and sometimes the CID would attend. They would go into each room and check the rooms. If they saw anyone not known to them, they would check. They wanted to check if the applicant was still there. He does not know why they did that; they did go and check every other house there. They will ask who was visiting that house and if there were any LTTE members around here. This happened for nearly two years from 2007 until 2009. The visits reduced a lot, maybe because the war was ending.

36. He was asked what happened after 2009. The applicant stated that the entire territory now became under the command of the SLA and surrounded by military men. Every ten metres were army men. It was not easy to travel around, because of the fear that they would stop and ask questions he never set out outside. He did not get out usually; his mother would go and do a bit of shopping.

37. He was asked if he faced any problems after that. He stated that he became scared to leave the house. He was living entirely inside the house and never got out. He was planning to leave the country. He wanted to stay there but he did not have enough time on his visa and he had to go home. His cousins were there. The tribunal put to him that its understanding is that there are many Tamils living there as refugees and asked why he felt he could not stay. He stated that his travel to [Country 2] was initiated by his mother; he did not know how things are done there. He asked his cousins what could be done there; his cousins tried to find avenues to help him stay but could not.

38. The tribunal noted that if he only stayed for two weeks in [Country 2] that was not a lot of time. The applicant referred to his visa expiring although the tribunal noted that the visa he provided a copy of indicated that it was valid for three months. He stated that he could not remember.

39. The tribunal asked if the applicant faced any other problems after he returned to Sri Lanka. The applicant stated that the CID rang him one day. They rang him twice and asked him about his whereabouts and what he was doing. He thinks it was in 2010 but he can’t remember the months; both phone calls were after his return from India.

40. The callers spoke in broken Tamil and ask who do you think is calling. They will ask him where he lived and what he was doing. The applicant said that he did not know who they were and hung up. Both times they tried to ask the same questions. He thinks they knew his name. They did not ask anything else. The calls could have been within a two week period but there were no further calls after that.

41. The applicant was asked if there were any calls before this. He stated that he does not think so. The tribunal asked why he thinks the calls were from the CID. He can identify them from the accents; they spoke in Sinhalese and then Tamil. They are CID. The tribunal noted that this does not necessarily mean that they are CID. He stated that this is their modus operandi. They were simply checking on him.

42. The applicant stated that there are two villages. One is [Village 1] and [another named village]. Villagers from both areas are in confrontation. They have their own agenda; it is an internal squabble. He does not know why they fight with each other. The SLA will come and surround the area. They questioned him also about where a person named [Mr C] is. The applicant did not know who this person was. They handcuffed the applicant. They took him from [Village 1] to the temple area and to show them where is [Mr C]. They were beating him and asked him to show them where [Mr C] leaves. He had a broken arm and a broken leg. They shuffled him into a truck. He was wearing a cap and stuffed it into his mouth. There were a lot of men in the truck with batons. They took him to a camp. They cross examined him and let him go free.

1. Now his mother saw him returning home in that condition and said that he should not stay any longer and had to get out. His mother managed to find him a place in a boat and sent him away.

2. That last event took place in 2012. He was asked if there fighting between the two villages at the time he was taken. He stated that it was a permanent fixture. He was asked if there was a flare up of violence at the time he was taken. The applicant stated that during that period the SLA surrounded their area and took many men like him into their custody because of the community fighting.

3. He was standing outside his house when he was taken. It was not only him but there were other neighbouring boys. It was only a few men from each village involved. He was asked why he thinks the SLA took him and asked him about [Mr C]. He stated that when the squabble took place and the SLA entered, they took whoever they could see standing by. 

4. They tied his hand with a rope and took him to a local temple area. They walked about 5 km to that area. It was lots of boys there; they were also being asked where [Mr C] was. About 10-15 boys were taken like that.

5. He was asked to confirm whether he had both a broken arm and broken leg. He stated that his leg was not broken he could not walk properly. His hand was tied behind his back and they were beating him with a wooden stump. It was the right arm. They had a long baton like thing with a wooden stump. He sustained those injuries while walking. When they reached the other end, the truck was waiting and took them to the [Village 1] camp. The other boys went and were taken in the truck.

6. He was asked what they asked him about. It was the same person who interrogated him about his brother’s involvement and asking the same questions about his brother’s involvement. They were asking him about [Mr C] who must be a man from the other village. The tribunal asked why they would be asking about someone from the other village. He stated that they were asking him about whether he was collaborating with [Mr C].

7. The tribunal asked how questions about his brother became involved in this. He stated that it was the same officer who had questioned him. The tribunal noted that this was in 2007; five years back and questioned whether the officer would remember him. He stated that maybe the officer remembered him.

8. The officer asked where his brother was and the applicant said he did not know. He did not think it was necessary to tell the officer that his brother had died. He spent about five hours at the camp. After that he stayed at his mum’s house until he left the country. He received treatment from a ‘native’ doctor.

9. He was asked why he fears returning to Sri Lanka now. He stated that the memory of what he endured is very vivid; he does not want to see the place again.

10. The tribunal explained that it had to look at the future risk of harm to him. He thinks more torture will come his way. Today, that land is under the complete control by the Sinhalese majority. A lot of atrocities are taking place on a daily basis. Girls are getting raped and tortured even today. He was asked why he thinks he will be tortured.

11. He stated that suppose he sees a woman being raped by the SLA. He cannot go and say anything to the SLA because he will be killed. The tribunal noted that it seemed a bit speculative to assume that he would find himself in such a situation. He was asked if he was a witness to anything in the past. He stated that the news is coming there; these things are happening now. If you are a witness to anything you will be killed. The Sinhalese have decided to annihilate the Tamils.

12. He was asked about any fears he has as a failed asylum seeker. He stated that a death threat would be made against him because he sought asylum in Australia. The government and their forces would make such a threat. The Tamils are getting killed. The whole world still doesn’t know that a lot of atrocities are taking place.

13. He was asked if his mother and brother faced any problems since he left. He stated that his mother is old and fragile. His brother also underwent a lot of hardships and is planning to leave the country.

14. He was asked if his brother’s LTTE connections are connected to his fear of future harm because what he had just said did not indicate that. He stated that he is proud that his brother tried to safeguard the Tamil community by joining the movement.

15. The tribunal noted that given that his brother passed away several years ago and did not hold any high position in the LTTE, the country information did not suggest that the applicant would face future harm as a result of his brother’s past LTTE involvement. The applicant stated that he does not know what rank his brother had.

16. The tribunal noted that it does not appear that authorities thought that his brother or the applicant was of any particular ongoing interest given his evidence about other Tamils being subjected to the same house searches as the applicant and his evidence about the harassment stopping once the war ended. The applicant asked if the tribunal was saying that his brother was not in the LTTE.

17. The tribunal explained to the applicant that credible country information indicates that simply being a Tamil with connections to LTTE or from LTTE area does not indicate a real chance or risk of serious or significant harm in the future or an adverse interest by the authorities. He stated that the tribunal does not really know the real situation for Tamils.

18. The tribunal put to the applicant that it appears many LTTE members have been captured and released after rehabilitation which also gave rise to questions about why he would face harm in the future. He stated that this was only a minority of LTTE members; it is just for show to the world outside.

19. The tribunal referred to the applicant’s evidence of never leaving the house after 2009. He stated that he did not have to work so he seldom went outside. He was asked if anything happened to him when he did go outside. Whenever he ventured out, he had to go through the SLA’s presence; they invited you in and asked the purpose of your travel. The tribunal referred to his written statement at paragraph 11 stating that whenever he left the house he was called by the CID who demanded to know where he was and told him he could not leave the house. It put to him that these were two rather different versions of his evidence.

20. The applicant was asked when he told the department about the incident in 2012. He stated that he never mentioned that village dispute. He only said it at the interview. He was not ready to pull out all the details from his memory. He did not tell his lawyer. He was asked why he did not tell his lawyer given that his statement was prepared in October 2012, some three months after he left detention. He stated that he told his lawyer that he had a broken arm but did not mention the leg. He was asked why. He started laughing and said he did not think of it.

21. The tribunal noted its concerns about his failure to disclose this incident before his departmental interview given that it was the last incident that happened to him, that he had claimed it was the reason his mother arranged for him to leave and the serious injury he claimed to have suffered. He stated that the whole scenario did not allow him to answer these questions or give evidence. In those days he was very soft spoken.

22. The tribunal put to him that despite being soft spoken, he was able before his departmental interview to describe and speak about an incident in 2007 where he was detained. The applicant stated that he thought it was not important for him to say that. The tribunal noted its concern regarding his credibility. He stated that not mentioning this was the biggest mistake of his life. He did not think clearly until five or six months later.

23. The tribunal referred to the decision record indicating that the applicant had also not mentioned the incident in his entry interview and that he appears to have given different reasons to the delegate as to why he failed to mention that incident (ie being told by others not to mention something he had not referred to in an entry interview) than what he said today. He stated that on the boat he was bashed by the Sinhalese skipper and also told not to mention this. He stated that he does not know when asked if he has any future fears of harm from the skipper. 

24. The tribunal explained to the applicant that it had to assess the risk to him in the future and, while it accepts that terrible atrocities happened to Tamils in the past, it appeared that the situation in Sri Lanka had changed following the end of the civil war. The tribunal referred again to the vast majority of independent information that does not suggest that simply being Tamil, a young Tamil man or from formerly LTTE controlled areas such as the North or having members of the family who were LTTE members is enough to give rise to a real chance or risk of serious or significant harm at the hands of the authorities or for them to suspect someone of LTTE activities.

25. The tribunal further advised the applicant that information before it indicated that Sri Lankan authorities are more focused on specific profiles of Tamils they are interested in and those include Tamils who are actively advocating for the separation of the Sri Lankan state.

26. The tribunal referred to that DFAT advice that there was no official discrimination against Tamils but was willing to accept discrimination continued to occur and that there continued to be a military presence in the North. The tribunal questioned however whether such discrimination and militarisation led to a real chance or risk of serious or significant harm.

27. The tribunal put to the applicant that information before it did not indicate that simply seeking asylum in a western country such as Australia gave rise to a belief on the part of authorities that a person supported or was a member of the LTTE. The tribunal also put to the applicant that information before it indicated that all returnees are treated the same and that Tamils are not singled out for differential treatment. It put to him that it appears he would be questioned to establish his identity and any criminal history but did not consider such questioning to be serious or significant harm.

28. The applicant stated that they have almost given their entire punishments to Tamils in the past. What they will give him now he has no idea. It may be that the information the tribunal has is not true. There was a recent report about a girl getting raped and the whole Tamil community has been uprising and may Tamils were shot. If he was there, he would participate in that; this is always happening in Sri Lanka. The tribunal put to him that it was not aware what reports he was basing these statements on and it was not clear how this was relevant to the risk of harm he would face if he returned. 

29. The tribunal discussed the country information regarding illegal departure and the fact that he is likely to be charged with offences under Sri Lanka’s immigration laws if he is returned. The tribunal put to the applicant information that enforcement of Sri Lanka’s immigration laws would be considered a law of general application because it appeared that it was applied in a non-discriminatory manner to everyone, regardless of ethnicity.

30. It advised him that he was likely to be remanded but then released on personal bail. It advised him that individuals involved in people smuggling or with previous convictions and non-compliance with bail conditions would not be released on personal bail. The tribunal noted that given these factors do not apply to him and that it appeared family could guarantee his bail, it may find that he would be released after a maximum of a few days’ detention.

31. He stated that they will charge him and let him go out but then the real problems will occur. Whatever boats have left Sri Lanka, it is the government that has initiated it because they want the whole Tamil community to flee. As a Tamil there will be no guarantee his safety there.

32. The tribunal put to him that the punishment was up to five years imprisonment or up to 200,000 rupees in fines but that there was judicial discretion and that the likely punishment would be a fine between 5,000-50,000 rupees. It put to him that DFAT advised that no one who was simply a passenger on a boat to Australia had been given a custodial sentence. It asked him if there was any reason why he would not be in a position to pay a fine.

33. The applicant stated that he did not know if he would have the money to pay or if he would be able to contact his relatives overseas in that kind of emergency.

34. The tribunal put to the applicant country information regarding poor conditions and lack of resources in Sri Lankan prisons and that both Tamils and Sinhalese prisoners were subjected to these conditions. The tribunal noted that some reports indicate that Tamils with LTTE links may be at risk of harm in prison but also observed that it is likely that the types of Tamil profiles that would face harm in prison were the same that would face harm in the general public and it may find on the evidence that he does not have such a profile. The tribunal advised that it appeared that a real chance of serious harm or a real risk of significant harm would only arise if he was imprisoned for a lengthy period of time and not simply a matter of days or weeks. It further advised that the information regarding prison conditions might lead it to conclude that there was not an intention to cause pain and suffering or extreme humiliation for the purposes of complementary protection.

35. The applicant stated that Sri Lanka does not appeal to him at all. The tribunal allowed further time to provide written submissions in light of the date of the last submissions.

    Findings and reasoning

36. The issue in this case is whether the applicant is owed protection obligations by Australia.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

37. The tribunal accepts on the basis of identity documentation provided that the applicant is a national of Sri Lanka. It has therefore assessed his claims against that country as his country of reference.

38. While aspects of the applicant’s evidence in relation to his background and events that occurred while he was young appeared credible and consistent with country information, the tribunal holds significant concerns regarding the applicant’s claims of more recent harm due to significant discrepancies and omissions in his evidence on this matter. As a result, the tribunal does not accept certain aspects of the applicant’s claims as credible.

39. The tribunal accepts uncontested evidence regarding the applicant’s background, namely that he is a Tamil from Jaffna district, Northern Province. It accepts that his father was killed by snipers in 1995 and that an uncle was killed in 2006 by the SLA. The applicant did not provide any further detail in relation to these incidents or why his relatives were killed and did not indicate that he feared any future risk of harm as a result of his relatives’ deaths.

40. The tribunal is also willing to accept that one of the applicant’s uncles joined the LTTE but died prior to the applicant’s birth, as he claimed at hearing. The applicant has not claimed that he or his family faced any problems or adverse attention from the authorities as a result of this, nor has he claimed that this would contribute to him facing a real chance or risk of serious or significant harm if he returned to Sri Lanka in the future and on the evidence before it, the tribunal does not accept this to be the case.

41. The tribunal also accepts on the basis of the applicant’s consistent evidence that his brother [Mr A] left home in 2004 to join the LTTE and that the applicant and his family have not seen or heard from him since, apart from receiving a letter shortly thereafter advising he had joined the LTTE. The tribunal further accepts that in 2009 the applicant was told that his brother had died.

42. The tribunal accepts as consistent with country information that in mid 2006, the applicant’s identity card was confiscated in a roundup and that, upon attending the army camp to obtain his documentation, he was lined up with other Tamils for identification by a hooded LTTE informant. The tribunal accepts the applicant’s evidence that he was not identified by the informer as having LTTE connections and released after his details were taken.     

43. The tribunal is further willing to accept, based on the applicant’s consistent evidence, that at the end of 2007, the applicant was stopped by SLA officers and taken to an army camp, detained for two days, interrogated and beaten. The applicant did not disclose in his original statement that he had been sexually assaulted while detained and this claim was not raised until submissions from his representatives in November 2013 referred to his instructions on this matter. The applicant disclosed minimal details during the hearing in relation to this incident and advised that he did not wish to provide any further details about his treatment. He claimed that he was very embarrassed about this and never told anyone about this incident. The tribunal acknowledges that victims of sexual assault may feel unable to disclose past assault due to feelings of shame and embarrassment. As a result the tribunal is willing to give the applicant the benefit of the doubt and accept that he suffered some form of sexual assault by guards while he detained.

44. The applicant claimed in his written statement that he thinks he was stopped by the SLA because they knew that his brother was an LTTE member. However, his evidence that the officers were asking him questions about the LTTE’s whereabouts and that at the end he finally admitted that his brother was in the LTTE do not indicate this to be the case. Numerous reports state that during the civil war, young Tamil men were frequently stopped and interrogated on suspicion of being LTTE members. Having regard to the evidence before it the tribunal finds that the applicant was most likely stopped for this reason and that the SLA were unaware of his brother’s LTTE connections until he disclosed them during his interrogation and beating. The tribunal accepts that the applicant was released after intervention from his mother and that his details were taken by the SLA.

45. The tribunal accepts that after this incident, SLA and CID would come to the applicant’s home to conduct searches. The tribunal is willing to accept that shortly after his admission that his brother was in the LTTE and his release from detention, these visits may have occurred daily. The applicant’s evidence regarding these visits was that the SLA and CID would search every room, check any unknown persons who were in the house and that all houses would be checked. He did not indicate that either he or any of his family members were specifically questioned about his brother or that they were questioned at all. He further indicated that other houses in his area were also checked, which is consistent with country information regarding random searches of Tamil homes by the authorities. The above evidence as well as the applicant’s evidence that the SLA/CID visits and searches reduced significantly over time and that they only happened from 2007 to 2009 indicates that the applicant and his family were not of any ongoing or particular interest to the authorities due to his brother’s LTTE connections. In this regard, the tribunal notes country information indicates that all persons living in LTTE controlled areas necessarily had contact with the LTTE[1] and that the LTTE had a policy of requiring one member per family to serve with them,[2] which indicates that the applicant and his family would not have been unique in having a family member in the LTTE. The applicant claimed not to know what rank or role his brother held in the LTTE and the tribunal finds on the basis of the evidence before it, including the applicant’s evidence of the authorities’ conduct, that his brother did not hold any high profile within the LTTE.

    [1] UN High Commissioner for Refugees (UNHCR) 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26-27 < Human Rights Watch 2008, Trapped and Mistreated: LTTE Abuses Against Civilians in the Vanni, 15 December type="1">

46. The tribunal found the applicant’s evidence regarding events post-2009 to lack credibility due to inconsistencies, omissions and lack of detail. In his written claims, the applicant stated that he began receiving harassing and threatening phone calls from the CID in 2009 and that he received two further calls from the CID in 2010. At his hearing however, he advised that he did not think he received any calls prior to the 2010 two phone calls. The applicant’s written statement does not provide any further detail about the 2009 harassing calls such as what threats were made or how frequently. The decision record states that the applicant claimed at hearing that the SLA would call him and ask who and where he was. The tribunal finds it implausible that members of the SLA would call the applicant to ask him about his identity.

47. The tribunal further notes that his written claims refer to being called by the CID whenever he left the house and questioned about his whereabouts, whereas in his hearing, when asked what, if anything, happened when he left the house, the applicant claimed that he was stopped and questioned by the SLA about the purpose of his travel.

48. In relation to the 2010 phone calls from the CID, the applicant claims that both occurred over a two week period during which a person speaking in Sinhalese and broken Tamil called him and asked him where he lived and what he was doing. He claimed that he knew it was the CID because that was their modus operandi. While the tribunal is willing to give the applicant the benefit of the doubt and accept that the applicant may have received two phone calls from unknown individuals speaking in Sinhalese and broken Tamil in 2010, it does not accept on the vague and undetailed evidence provided by the applicant that these callers were from the CID or the Sri Lankan authorities. In any event, the applicant has not claimed that any such phone calls continued after 2010 and the tribunal does not accept that he faces a real chance or risk of serious or significant harm as a result of those phone calls, nor does the tribunal accept that there is a real chance or risk that he would receive such calls in the future.

49. Based on the concerns raised above including the applicant’s vague and inconsistent evidence, the tribunal does not accept that he received threatening or harassing phone calls from either the CID or the SLA in the past or that he was called by the CID whenever he left his house to account for his whereabouts.

50. The tribunal does accept that in the period following the end of the civil conflict, the applicant may have felt apprehensive due to the influx of SLA into Jaffna, that he may have been asked by the SLA to account for his movements on occasions and that he may have felt he was being monitored. It accepts that he felt fearful of moving around due to the possibility of being stopped and questioned by the SLA. The tribunal does not accept on the evidence before it that the applicant was in fact being monitored by the authorities and finds his evidence of living entirely inside the house and never going outside to be exaggerated, particularly given that the applicant travelled to [Country 2] for two weeks in 2010 to attend a cousin’s wedding. The tribunal notes that the applicant has not claimed to have faced any problems from authorities when exiting and re-entering Sri Lanka.

51. Regarding his intentions upon travelling to [Country 2], the tribunal is willing to accept that the applicant may have considered remaining in [Country 2] while he was visiting there but does not accept that this is indicative of the risk of harm he faced at the time. In any event, the tribunal notes that the applicant returned to Sri Lanka from [Country 2] after two weeks.

52. The tribunal hold significant concerns regarding the applicant’s evidence about an incident in 2012, when he claims he was made to walk for five kilometres by the SLA with his hands tied, questioned about his brother’s LTTE connections and about a man named ‘[Mr C]’ in relation to a dispute between villagers and where his arm was broken. The tribunal finds it significant that the applicant did not raise what appears to be a significant incident during which he sustained a serious injury in his written claims, and the decision record states that he did not mention this incident in his entry interview. The decision record further states that the applicant did not raise this claim until the end of his departmental interview with the delegate.

53. The tribunal has considered but does not accept the different reasons provided by the applicant, at various times, as to why he did not raise this incident prior to the end of his departmental interview. The tribunal finds it difficult to accept that, had this event occurred two months prior to the applicant’s departure from Sri Lanka, resulted in a serious injury such as a broken arm and was the catalyst for his departure (according to the decision record), the applicant would not have mentioned it at an earlier stage than at the end of his departmental interview. The tribunal does not accept that he thought it was not important for him to mention this incident or that he did not mention this incident due to being confused, soft spoken, not thinking clearly or because he was told not to mention  it if he did not say it at his entry interview. The tribunal is further not willing to accept on the evidence before it that the ‘scenario’ of the interview did not allow him to mention this incident at an earlier stage, bearing in mind that the applicant had the assistance of a legal representative in the preparation of his claims and during the departmental interview.

54. The tribunal also has serious concerns regarding what appears to be the embellishment of the applicant’s evidence in relation to his injuries arising from this incident. The decision record notes that the applicant claimed at his interview that he sustained a broken arm during this incident whereas at hearing the applicant claimed that both his leg and arm were broken but later clarified that his leg was not actually broken but that he could not walk properly.

55. The tribunal further finds the applicant’s evidence regarding ‘[Mr C]’ to lack credibility. When asked who ‘[Mr C]’ was at his hearing, he claimed that [Mr C] must be a man from the other village, with whom his village was allegedly having a dispute. The applicant was unable to explain why the authorities would round him and other boys from his village up and interrogate them about whether they knew where [Mr C], a man who was not from their village, lived or whether they were collaborating with such a person.

56. The tribunal further finds it implausible that, if an SLA officer was asking him questions about his brother’s affiliation with the LTTE, the applicant would not have advised the SLA officer that his brother had passed away some three years earlier. The tribunal finds the applicant’s evidence that he did not think it was ‘necessary’ to tell the SLA officer this information to lack credibility.

57. The tribunal acknowledges that some aspects of the applicant’s evidence regarding his treatment during the 2012 incident are somewhat detailed and may be based on certain elements of true experiences. However, this does not outweigh the concerns the tribunal holds about the applicant’s claims in relation to this incident.

100.   As a result of its concerns, the tribunal does not accept that the applicant was taken by the SLA as a result of inter-village fighting, had his hands tied with rope and taken to a local temple area. The tribunal does not accept that the applicant and other boys were asked about ‘[Mr C’s] whereabouts. The tribunal does not accept that the applicant was beaten with a wooden stump or baton and that his arm was broken as a result of such a beating or that his leg was broken or otherwise injured in the circumstances he has claimed. The tribunal does not accept on the evidence before it that the applicant was taken to [Village 1] army camp or that he was interrogated about ‘[Mr C]’ or about his brother by the same SLA officer who interrogated him in 2007. The tribunal does not accept that the applicant received treatment for his injuries from a native doctor.

Future risk of harm on the basis of being Tamil and/or actual or imputed political opinion

101.   In light of its above findings, the tribunal has considered whether the applicant would face a real chance or serious harm or real risk of significant harm due to his profile as a Tamil and political opinion.

102.   Having considered independent country information before it, the tribunal is of the view that this information indicates that Sri Lankan authorities no longer consider being a Tamil, a Tamil male or even a Tamil male from formerly LTTE- controlled areas gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with a pro-LTTE opinion.[3] The UK Home Office noted in 2012 that "the principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms”.[4]

[3] UNHCR, Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka, 21 December 2012 do not list Tamils as a group at risk in Sri Lanka.

[4] UK Home Office, 2012, Country Policy Bulletin - Sri Lanka, October.

103.   More recently, in the country guidance decision of GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC), the UK Upper Tribunal concluded that the focus of the Sri Lankan government’s concern has changed since the end of the civil war in May 2009 and that the LTTE in Sri Lanka is a spent force. The Upper Tribunal found that the government’s present objective is to identify Tamil activists in the diaspora working for Tamil separatism and to destabilize the unitary Sri Lankan state.[5] The Upper Tribunal concluded that individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state are at risk of serious harm in Sri Lanka. These findings further support the view that merely being of Tamil origin or a Tamil from a formerly LTTE-controlled area is not sufficient to give rise to an imputed pro-LTTE political opinion, a real chance of serious harm or real risk of significant harm.

[5] GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

104.   While the DFAT country report[6] states that there are no official laws or policies against Tamils on the basis of their ethnicity, the tribunal is willing to accept that some level of societal discrimination towards Tamils, such as greater scrutiny at checkpoints, may continue to exist. However, the evidence before the tribunal does not suggest, and the tribunal does not accept, that any such discrimination amounts to serious harm as set out in s 91R(2) or to significant harm as set out in s 36(2A) of the Act.  The tribunal does not accept the applicant’s claim that the Sinhalese want to annihilate Tamils.

[6] DFAT Country Report: Sri Lanka (16 February 2015).

105.   The applicant himself has not claimed to be a member or supporter of the LTTE, although it accepts that he may be proud of his brother having fought for the Tamil people. As noted in its above findings, the tribunal accepts that the applicant has suffered serious harm at the hands of the Sri Lankan authorities in the past as a young Tamil man from the North, namely his detention and physical assault in 2007. The tribunal further accepts that the applicant’s brother was a member of the LTTE who died in approximately 2009 and that the applicant may have previously faced monitoring  and home searches by the authorities as a result of this and his profile as a Tamil from the Northern province. However, the applicant’s evidence is that this conduct occurred between 2007 and 2009 and decreased as the war was ending. This also appears to be consistent with the country information referred to above regarding the treatment of Tamils by the authorities.

106.   The tribunal has found that the applicant has not faced any further harm from the authorities apart from being stopped and questioned about his movements by the authorities and has not been further questioned about his brother after the 2007-2009 period. This does not indicate, and the tribunal does not accept, that the applicant continues to be of adverse interest to, or would be perceived as a threat by, the authorities due to his brother, now deceased, having been a member of the LTTE, or for any other reason.

107.   As previously noted, the tribunal accepts that the applicant’s father and an uncle were killed during the civil conflict but finds on the applicant’s evidence that this would not lead to him facing a real chance of serious harm or real risk of significant harm in the future. While the tribunal accepts that one of the applicant’s uncle’s joined the LTTE and died before the applicant’s birth, given the applicant’s evidence does not indicate this has caused him problems in the past, the tribunal does not accept on the evidence before it that this would increase the risk of harm to the applicant.

108.   While the tribunal accepts that the applicant may have been stopped and questioned about his comings and goings by Sri Lankan authorities and accepts, given the continued military presence in the Northern province, that there is a real chance that this may occur in the reasonably foreseeable future, the tribunal does not consider such conduct to constitute serious or significant harm.

109.   Towards the end of the hearing the applicant made claims regarding Tamil protests against the rape of a Tamil girl during which some Tamils were shot. The applicant did not provide any further details in relation to these such as when they occurred and did not indicate that he was present at any such protests although he claimed that if he was in Sri Lanka, he would participate in such a protest. The applicant has not claimed to have participated in any protest in the past. Given the applicant’s vague and undetailed evidence in relation to these incidents, the tribunal in unwilling to accept that these events have occurred. The tribunal does not accept on the evidence before it that there is a real chance or risk that the applicant would participate in such a protest and be shot or face other serious or significant harm as a result in the reasonably foreseeable future.

110.    

111.   The applicant also made claims at the hearing that he may be killed if he sees a woman being raped by the SLA. The tribunal finds the applicant’s claim that he may witness the rape of a Tamil woman by the SLA and will be killed or tortured as a result to be speculative and does not accept that there is a real chance or risk of this occurring.

112.   The applicant also made reference at hearing to having been bashed by the Sinhalese boat skipper, which he had been told not to mention previously. The applicant only mentioned this incident in the context of explaining why he had not mentioned the 2012 incident at an earlier stage and stated that he did not know whether he had any future fear as a result of that. On the basis of the evidence before it, the tribunal is willing to accept that the applicant may have been assaulted by the boat skipper during his trip but does not accept on the evidence before it that this would lead to a real chance or risk of serious or significant harm if he returned to Sri Lanka.

113.   Having regard to the evidence before it, the tribunal does not accept that the applicant would face a real chance of serious harm or a real risk of significant harm due to being a Tamil, a young Tamil male from the Northern province, as a result of his brother’s or other relatives’ LTTE membership, for any imputed political opinion arising as a result of that profile.

Future risk based on being a failed Tamil asylum seeker

114.   Advice received from DFAT discussed with the applicant at the hearing, indicates that Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen and that Tamils are not `singled out' for special treatment.[7] Country information does indicate, however, that non-voluntary returnees are referred for questioning and criminal and security checks by Sri Lankan authorities.[8] Again, DFAT advises that such checking would occur regardless of ethnicity.[9]

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

[8] CX29995 1: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012.

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

115.   Whilst there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka,[10]other sources contest these claims.[11] In 2012, the UK Home Office noted that these allegations lack substance and detail and that:

[10] Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012; refused to give the fish to the Navy; Amnesty International, Sri Lankan Asylum Seekers tortured after being forcibly returned from Australia, 3 September 2010.

[11] Landlnfo, 2012, Sri Lanka: Human rights and security issues concerning the Tamil population in Colombo and the Northern Province, 7 December.

The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.[12]

[12] UK Home Office, 2012, Country Policy Bulletin - Sri Lanka, October.

116.   Further, one prominent report of mistreatment, by the NGO, Freedom from Torture, was concerned with the treatment of returnees with an actual or perceived connection to the LTTE.

117.   As noted above, the recent UK Upper Tribunal found in a country guidance decision relating to returnees, that the Sri Lankan government’s focus had shifted post-war and that its objective is to identify Tamil activists in the diaspora. As also noted above, the tribunal does not accept that the applicant fits this profile.

118.   The tribunal’s assessment of the country information before it, including that contained in submissions from the applicant’s representative, is that it does not indicate that all returnees/failed asylum seekers, or all Tamil returnees are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Nor does the country information indicate that all persons or all Tamils who leave Sri Lanka illegally are imputed with LTTE associations or sympathies. Rather, it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers (from a western country) may be of adverse interest to the authorities. In light of its findings regarding the applicant’s profile and past circumstances in Sri Lanka, the tribunal does not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return.

119.   The tribunal finds that the applicant will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. Taking into account the applicant’s circumstances and profile, the tribunal does not accept that such standard questioning and security checks amounts to serious harm or significant harm as set out in s 36(2A). As noted above, the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities. The tribunal also finds that the risk of the applicant being questioned in a way that amounts to significant harm to be remote and less than real.  The tribunal does not accept that there is a death threat facing the applicant as a result of seeking asylum, as he has claimed.

120.   The tribunal therefore does not accept that the applicant would face a real chance or risk of serious or significant harm as a result of being a failed Tamil asylum seeker from Australia.

Future risk of harm on the basis of the applicant's illegal departure from Sri Lanka

121.   The tribunal has considered whether the applicant would face harm as a result of having illegally departed Sri Lanka.

122.   Illegal departure from Sri Lanka is an offence under s 45 of the Immigrants and Emigrants Act carrying a penalty of a term of imprisonment of up to five years or a fine of up to 200,000 rupees.

123.   DFAT has advised that, since November 2012, all returnees who left Sri Lanka illegally have been arrested by the CID after being processed back into Sri Lanka and charged with an offence under the Immigrants and Emigrants Act and bailed.[13]

[13] DFAT report 1478, MRT/RRT information request: LKA41452, 28 February 2013; DFAT Country Report: Sri Lanka (16 February 2015).

124.   According to DFAT, persons charged with illegal departure are held in police custody at the CID Airport Office for up to 24 hours during the investigation period. They are then produced before the Magistrate's Court and released on bail. Persons needing to be held for more than 24 hours because they arrived on a weekend or public holiday are transferred to the nearby Negombo Prison Remand Unit until the Magistrates Court is in session. All persons are currently being granted bail on their own recognisance with a family member as guarantor. The court may impose specific bail conditions if the person has previous convictions and has not complied with past bail conditions. There is no payment required for bail. The court may decide not to grant bail if the returnee is considered to be a facilitator or organiser of people smuggling.[14]

[14] DFAT report: 1479, LKA41452: Further clarification regarding Post's response to LKA41452.

125.   DFAT and other sources have indicated that returnees who departed Sri Lanka illegally are being charged regardless of ethnicity, as are persons intercepted attempting to leave Sri Lanka illegally and that the law is being enforced to deter future boat ventures.[15]

[15] `Asylum denied, a penalty awaits at home', Sydney Morning Herald, 8 December 2012.

126.   The tribunal accepts on his evidence that the applicant departed Sri Lanka without a valid travel document and from a place other than an approved port of departure and that it is likely that the applicant will be charged with an offence under the Immigrants and Emigrants Act.[16]

[16] Department of Foreign Affairs and Trade 2012, DF 4T Report no. 1446- Sri Lanka: RRT Country Advice Information Request LKA40999, 22 October.

127.   The tribunal is satisfied that the Immigrants and Emigrants Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. The tribunal is further satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. The tribunal finds that s 45 of the Immigrants and Emigrants Act is a law of general application and its application does not give rise to persecution under the Refugees Convention.

128.   As noted above, the tribunal finds that the standard checks and questioning of the applicant at the airport upon his return to Sri Lanka does not constitute serious or significant harm.

129.   The tribunal places weight on advice from DFAT and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act before appearing before a court hearing regarding bail. The applicant’s mother, brother and uncle are present in Sri Lanka to guarantee his bail and the tribunal finds on the evidence before it that they will be able to do so.

130.   The tribunal further finds that the applicant will not be denied bail given that he has not been involved in people smuggling nor has he previously been convicted of any offences in Sri Lanka. Accordingly, having regard to the evidence before it the tribunal finds that the applicant will be granted personal bail and will only be on remand for a short period of one to several days.

131.   The 2006 amendments of the Immigrants and Emigrants Act remove a legislative requirement for a minimum sentence of imprisonment for a conviction under s.45(1)(b) and allow a judicial discretion under s.303 of the Code in relation to the suspension of any sentences to imprisonment on a conviction under s.45(1)(b). Courts also have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction.[17] Information before the Tribunal indicates that no person who has just been a boat passenger has been given a custodial sentence to date but that fines have been issued to persons intercepted in the act of illegally departing Sri Lanka.[18] DFAT has reported that such fines have been between 5,000 and 50,000 rupees.[19]

[17] Code of Criminal Procedure Act (No 155 of X979), ss. 303, 306, See also Immigrants and Emigrants (Amendment) Act No 31 of 2006, s.2.

[18] Sri Lanka: LKA40999 - returnees -- Illegal Departure - Tamil Women -- Security in north and east - wealthy Tamils, 22 October 2012; `Asylum denied, a penalty awaits at home', Sydney Morning Herald, 8 December 2012; DFAT Country Report: Sri Lanka (16 February 2015).

[19] DFAT Country Report: Sri Lanka (16 February 2015).

132.   Having regard to the above information, the tribunal finds that the penalty most likely to be imposed on the applicant if convicted of an offence under the Immigrants and Emigrants Act is a fine of 5,000-50,000 rupees. The tribunal finds on the evidence before it that the risk that the applicant would be imprisoned instead of fined is remote. The tribunal does not accept that the imposition of a fine of that amount constitutes significant harm as defined in the Act.

133.   Given the applicant’s evidence that his brother and uncle run a market and that the family also gets remittances from family members in Europe, the tribunal finds that the applicant would be able to pay the fine imposed upon him. The tribunal does not accept that, if necessary, the applicant would not be able to contact his relatives in Europe to ask for money for the fine given his evidence that they have been sending money to his family..

134.   The above findings and reasoning lead the tribunal to find that the chance or risk that that the applicant would spend more than a few days in prison after his return to Sri Lanka as a result of being charged with breach of Sri Lankan departure laws or for any other reason, is remote.

135.   The tribunal has considered whether the applicant would face a real chance or risk of serious or significant harm during the few days he would spend on remand.

136.   Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms and instances of torture, maltreatment and violence.[20]  Reports indicate that overcrowding is caused by, among other things, a large backlog of cases and that, while some prisoners are released after a day, many languish for years until they are released by court order.[21] The evidence indicates that both Tamil and Sinhalese prisoners face the same conditions and there are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka's prison system. Some reports also identify those who have been tortured to include Tamils with an actual or perceived association with the LTTE.[22]

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

[21] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9 < US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.

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

137.   While the above reports refer to torture and assault of Tamils with actual or imputed LTTE association, the tribunal has found that the applicant does not hold such a profile and does not accept on the evidence before it that his deceased brother’s and/or uncle’s LTTE membership would result in such a profile. The evidence before it suggests that poor prison conditions are not applied in a discriminatory manner against Tamils and the tribunal does not accept that the applicant would face a real chance of serious harm as a result of being a Tamil, a young Tamil male, a Tamil from the Northern Province, his deceased relatives’ LTTE membership or any other Convention ground while he is imprisoned on remand for a few days after his return to Sri Lanka.

138.   Given that the applicant will be on remand for no more than a few days, the tribunal also finds that the risk that he would face significant harm while on remand for this short period is remote. 

139.   Furthermore, as raised with the applicant, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. Country information indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve[23] rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. Given the tribunal’s findings that the applicant will not face a real risk of significant harm as a Tamil, a failed Tamil asylum seeker, due to his connection with his brother or because of any imputed political opinion arising as a result, the tribunal also does not accept that there is a real risk the applicant will face significant harm whilst in prison for a relatively short period as a Tamil, due to any actual/imputed political opinion arising from his ethnicity or for any other reason.

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

140.   The tribunal does not accept that any anxiety and discomfort that the applicant would face while on remand between one and several days only, where the evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict severe pain or suffering or to cause extreme humiliation, amounts to significant harm as set out in s 36(2A) of the Act.

Overall findings on the applicant’s real chance of serious harm and real risk of significant harm

141.   Having considered all of the applicant’s claims both separately and cumulatively, the tribunal does not accept that the applicant faces a real chance of serious harm if he returns to Sri Lanka now or in the reasonably foreseeable future due to his Tamil race, as a young Tamil man from the Northern province, due to his brother’s or any other relatives’ LTTE membership, to his actual/imputed political opinion, as a failed Tamil asylum seeker or for any other Convention ground. The tribunal therefore finds that the applicant’s fear of persecution is not well-founded.

142.   Having considered all of the applicant’s claims both separately and cumulatively, the tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm due to his his Tamil race, as a young Tamil man from the Northern province, due to his brother’s or any other relatives’ LTTE membership, to his actual/imputed political opinion, as a failed Tamil asylum seeker, as a result of his illegal departure from Sri Lanka or for any other reason.

143.   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).

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

145.    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

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

Magda Wysocka
Member