1311582 (Refugee)

[2015] AATA 3350

1311582 (Refugee) [2015] AATA 3350 (23 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1311582

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Susan Pinto

DATE:23 September 2015

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2015 at 3:28pm

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. The applicant is a citizen of Sri Lanka. He is aged in his early [age]. His ethnicity is Tamil and his religion is Hindu. He resided in [a] Town in Batticaloa District in the Eastern Province of Sri Lanka until his departure by boat for Australia [in] June 2012.

2. The applicant applied to the Department of Immigration for the Protection visa [in] November 2012. The applicant claimed that as a result of his involvement in the Tamil National Alliance (TNA) he was assumed to have links with the LTTE. The applicant claims that he was the victim of extortion by a Tamil paramilitary group member who threatened his wife. The applicant claims he was required to provide [products] in order to protect himself and his family. The applicant claims that when he ceased providing the [products] he and his wife were again threatened. The applicant claims that he went into hiding and his wife moved with their children to live elsewhere. The applicant claims to fear harm from paramilitary groups and the Sri Lankan authorities upon his return to Sri Lanka. The applicant also claims that due to his [relative]’s involvement with the LTTE that he will be imputed with a pro-LTTE political opinion and will suffer harm for this reason upon his return to Sri Lanka.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] August 2013. The delegate found that “essentially, the applicant knew virtually nothing about the TNA”. The delegate found that the applicant’s claims to be an “ardent supporter” of the TNA in Sri Lanka to have been fabricated. The delegate also found that the applicant’s claims to have come to the attention of the authorities as a result of his TNA association were unconvincing. The delegate concluded that the applicant had no links with the LTTE in Sri Lanka; was never a supporter of the LTTE; and he and his wife were of no interest to the Criminal Investigation Division (CID) or the Tamil paramilitary group (Karuna group). The delegate considered the situation for returnees, but was not satisfied that there was a real chance or a real risk the applicant would suffer serious or significant harm. 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).

4. A summary of the relevant law is set out in an attachment to this decision. The issues for the Tribunal’s consideration are whether the applicant has a well founded fear of persecuted for one or more of the five reasons set out in the Refugees Convention. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason it must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant indicated on the application form that he speaks, reads and writes Tamil. He indicated that he was educated until Year [grade] and he completed his schooling in [year]. The applicant stated that he was a [occupation] in Batticaloa District prior to his departure from Sri Lanka. The applicant is married with [children] who are all attending school.

6. In a statutory declaration provided with the application, the applicant stated that since 2004 he has been an “ardent” supporter of the Tamil National Alliance (TNA) and it continues to be perceived by the Sri Lankan authorities as a party that supports the LTTE. This is due to the fact that members of this political party have in the past and the present openly voiced their opinions and attempted to seek justice for Tamils. As a minority Tamil in a country where the majority has been persecuted the minority Tamils for several years, the applicant believes that the LTTE and the TNA were the only representatives of Tamils. Since the LTTE was defeated, the Sri Lankan government has been focusing on suppressing the activities of the TNA through various means such as paramilitary groups. Since 2004, the applicant would regularly attend TNA meetings, and help out when required, especially prior to various elections, including provincial council elections and municipal elections.

7. The applicant states that [in] April 2009 at approximately 5pm or 6pm, he went to visit his mother who lives approximately 2 kilometres away. Whilst he was at his mother’s house he received a call from his wife at approximately 8pm. His wife informed him that four armed men who spoke Tamil and Sinhala and wearing balaclavas had come to his home in search of him. They realised he was not at home and told his wife that he needed to come to the CID branch inside the army camp which was situated close to the [town’s] [factory]. The men threatened to kill the applicant if he did not report the following day.

8. The applicant’s wife knew an influential member of the Karuna group (also known as TMVP) called [Mr A]. His wife used to work as a [occupation] in a [charity organisation] funded project in an LTTE controlled area and often travelled there. [Mr A] was a member of the LTTE at the time prior to defecting to the Tamil paramilitary group, Karuna. His wife spoke to [Mr A] and asked if he could find out why they wanted her husband. [Mr A] informed his wife that the applicant was of interest to the authorities due to his involvement with the TNA. He added that all TNA supporters have been branded as LTTE supporters. He asked them to pay money or the equivalent of [product] on a regular basis in order to avoid being harmed by members of the Sri Lankan authorities. The applicant had no option but to give [Mr A] approximately [number] of [products] every [time] because he feared that the Sri Lankan authorities would abduct him.

9. Since April 2011, the applicant experienced losses during two consecutive [periods] and he was unable to provide [Mr A] the [products]. Sometime in May [2012], “unknown persons” who spoke in Tamil and Sinhala called his wife. They verbally assaulted his wife and asked for their commission. The applicant’s wife explained that they made losses and were not able to give him the [products]. The caller asked his wife to go to the [Army] camp and threatened to kill his wife if she did not go. The caller suggested that the applicant’s wife would need to have sex with him if she wanted to save him. After that time, the applicant hid at friends and relatives homes for approximately a month and fled the country. Since arriving in Australia, the applicant’s wife has informed him that she continues to receive threatening telephone calls.

10. The applicant’s wife’s [relative] was conscripted by the LTTE in 1999 and was killed in action sometime in 2001. The applicant believes that he is at risk of being targeted by members of the Tamil paramilitary group (Karuna group) as he has been unable to provide their commission. He also fears he will be targeted by an influential Tamil paramilitary group member. The fact that the applicant fled Sri Lanka illegally, he claimed asylum in Australia, and his [relative] was a member of the LTTE, will place him at higher level of risk of being harmed by the authorities upon his return to Sri Lanka. The applicant fears that the Sri Lankan authorities and the Tamil paramilitary group will harm him and that the Tamil paramilitary groups work alongside the government.

11. The applicant provided documentation to the Department, including an Extract from an Information Book of the Police station, dated [in] April 2009 and a letter, dated [in] August 2012, by [an official] of the Batticaloa District. Both documents are in Tamil. During the hearing held in September 2015, the applicant was asked about the documents provided to the Department. The applicant indicated that one is from the TNA and one is from the Police when he lodged a report in 2009. The interpreter translated the report and stated that it says he was accused of being a supporter of the LTTE by the Karuna Group and has informed the army. An anonymous group came looking for him and he fled to another country to save his life.

12. The applicant was interviewed by the delegate [in] February 2013. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that the record as set out in the Department’s decision record is accurate.

    Application for review

13. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

14. The applicant subsequently provided a statement to the Tribunal in which he addressed the issues raised by the delegate. The applicant states that he was very nervous and found the interview very intimidating and it was conducted with a telephone interpreter. The applicant tried to raise this issue several times but was “cut short” by the delegate. The applicant’s representative tried to address this issue after the natural justice break. The applicant states that the TNA was very popular and was the only group really standing up for their cause. He states that the LTTE was “too extremist” and the TNA is a moderate political group. The LTTE caused problems by asking him to buy things for them and although he did not want to he had no choice. The applicant does not know when the TNA was formed but he does know it was from several Tamil groups. His whole family supports the TNA “not in actual support” but by voting for them. The applicant believes that the TNA supports Tamil people and is a “voice” for them and this was the “main reason why I wanted to join so I became a member”. The applicant became a member of the TNA and put up posters for them. He attended their meetings and while he was not a speaker he was always interested in what they had to say. The TNA supported Tamils who were arrested by the Army and financially supported Hindu temples and Tamil sports clubs.

15. The applicant also states that he was forced to leave Sri Lanka due to his difficulties with the CID and the Karuna group. The applicant states that when he was interviewed by the delegate he felt he could not make his point about the [products] and he was not actually giving [product] but “[another product]” and the [amount] varied each year. His lawyer wrote approximately [number] of [products] per year, but this was not a fixed amount. The applicant also states that the Sri Lankan government is very suspicious of people like him who support the TNA and believe they are all LTTE supporters. It is for this reason that he has been targeted by the CID as well as the Karuna group. The applicant’s wife also received threats by telephone but what he meant to say when he was interviewed was that a threat in Sinhalese carries more weight for them because it shows that the Sri Lankan authorities are behind the threats, rather than a Tamil group. The applicant also states that he is not sure when his wife was visited by the CID. It happened after he arrived in Australia but he was “only guessing” that it was in October. The applicant states that this family is no longer living in their home because his wife was concerned about their safety so due to ongoing harassment by the CID she moved to her mother’s place. The applicant is worried that people in their village will learn he has gone to Australia and might abduct their children for ransom. His brother has organised for his wife and children and his wife’s sister to move to [a named location]. 

16. The applicant’s representative provided a submission to the Tribunal in which it was submitted that the applicant fears harm upon his return to Sri Lanka because of his ethnicity; his imputed political opinion against the government as a pro Tamil separatist due to his involvement with the TNA; and his membership of particular social groups of failed asylum seekers. It is submitted that the applicant did not understand some of the questions asked by the delegate and he was repeatedly told only respond to the questions asked. It is submitted that the delegate was not “mindful of issues” when working with interpreters. The representative refers to some of the findings of the delegate in relation to the applicant’s knowledge of the TNA and other aspects of his evidence.

17. The applicant attended a hearing with the Tribunal as previously constituted on 14 January 2015. The hearing was adjourned and further hearings were set, but subsequently cancelled.

18. Following the reconstitution of the matter to a differently constituted Tribunal, the applicant again appeared before the Tribunal on 2 September 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent. At the hearing, the Tribunal explained that although the previously constituted Tribunal had been unable to complete the review, it had listened to the hearing recording and it intended to have regard to all of that evidence. The Tribunal also advised the applicant that it intended to raise some concerns with him in relation to aspects of his evidence which was provided during the previous hearing and during the interview with the Department.

    ASSESSEMENT OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for a Convention reason if he returns to Sri Lanka?

19. The applicant has claimed that he has a well founded fear of being persecuted in Sri Lanka because of his ethnicity (Tamil); his imputed political opinion (against the government or as a pro Tamil separatist due to his involvement with the TNA; and his membership of particular social groups (failed asylum seekers). The Tribunal has considered, therefore, whether the applicant has a well founded fear of persecution for these reasons. In considering these issues, the Tribunal has had regard to the applicant’s written claims and oral evidence to both the Department and the Tribunal. The Tribunal has also had regard to the submissions and independent evidence provided by the representative, as well as the independent evidence obtained through the Tribunal’s own inquiries. The Tribunal has also had regard to the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade.

20. Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of his experiences in Sri Lanka and his reasons for leaving Sri Lanka. The Tribunal does not accept that the applicant had any involvement with the TNA, apart from possibly voting for it, and does not accept any of his claims to have been threatened or harmed by the TMVP (the Karuna group) or that he genuinely fears harm for this reason upon his return to Sri Lanka. Nor is the Tribunal satisfied that the applicant has ever been imputed with a pro-LTTE opinion or considered to be a supporter of Tamil separatist groups. The Tribunal is also not satisfied that there is a real chance that the applicant will suffer harm upon his return to Sri Lanka as a result of his ethnicity as a Tamil, his actual or imputed political opinion or because of his membership of a particular social group. The Tribunal considers that the applicant has manufactured his claims in an attempt to establish a basis for protection in Australia. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s past experiences in Sri Lanka

21. As indicated above, the applicant has claimed that his involvement with the TNA has resulted in him suffering harm in Sri Lanka. During the Department interview, the applicant told the delegate that he was not a member of the TNA and was simply a supporter. He stated that he became a supporter in 2001. When asked by the delegate why his statutory declaration states that he became an active member from 2004 until 2011 he stated that in 2001 he just “joined” the TNA and in 2004 he became fully emerged in the politics of the TNA. He told the delegate that he became a supporter in 2001, but he could not recall the date, but then stated that it was in February. When asked if he knew when the TNA was formed, the applicant stated that he does not know. When advised by the delegate that according to the Political Handbook of the World, various political parties established the TNA in February 2001, the applicant denied that this was the case and stated that it was formed many years before. When asked whether he knew much about the TNA, the applicant told the delegate that he does not know much. When advised that he has claimed to have been an “ardent supporter” since 2001 yet he appears to know very little about it and does not know the four parties amalgamated to form the TNA, the applicant stated that he was “too young”. When advised that he was [an adult] in 2001, the applicant again indicated he was “too young”. When asked more questions about the TNA, the applicant was unable to respond to questions in relation to the formation of the TNA and unable to nominate the two manifestos of the TNA.  

22. During the hearing held in January 2015, the applicant was asked about his involvement with the TNA. The applicant stated that he was a supporter of the TNA and had not paid a membership fee. The applicant stated that he would attend meetings and help from time to time at election time. When asked when he began to take an interest in the TNA, the applicant initially indicated that he could not remember, but when asked if he could say approximately when he became interested in the TNA, the applicant stated that it was about 20 years ago which was in about 1995, but he became involved in the organisation in 2004. The applicant stated that since that time he had been involved in election campaigns. When asked about the two manifestos of the TNA, stated that if there was no TNA there would be no identity or support for the Tamils. When asked when the party was formed, the applicant stated that he does not know. The applicant knew that four parties joined to form the TNA, but indicated that he could only name two of those parties. When asked when the TNA dropped its demand for an autonomous state, the applicant indicated that he did not know. He was subsequently advised by the Tribunal that this is an important point. The applicant was asked about the major platform of the TNA, when it was formed, why it was formed, its manifesto and its relationship to the TNA. The applicant stated that it helped Tamil people and told them what is happening and Tamils and informed overseas agencies about the situation for Tamils. 

23. During the most recent Tribunal hearing, the applicant was advised that having listened to the CD Rom recording of the Department interview, it did not appear that there were any difficulties due to the interpreting. The applicant was also advised that the Tribunal had difficulty accepting that the delegate interrupted him and did not allow him to respond to questions asked. When asked why he knew such a little amount about the TNA when he was interviewed, the applicant stated that he was a low level person in the TNA and such people did not have to know everything about the organisation. The Tribunal commented that the independent evidence does not support his claims that such low level people in the TNA have problems. The applicant stated that people in higher positions have more money and can afford protection. When asked if he was a supporter or whether he joined the TNA, the applicant stated that he was a supporter. The Tribunal read the applicant his statement which had been provided to the Tribunal whereby he had stated that he was a member and had joined the TNA. The Tribunal advised the applicant that in his statement he had said that “the TNA supports Tamil people and this is the main reason I wanted to join so I became a member”. The applicant stated that there is no difference between being a member and a supporter. The Tribunal advised the applicant that he has clearly differentiated at different times and appeared to understand that there is a distinction between being a member and a supporter. The applicant stated that a member is someone who is more involved and will talk to about 10 people.

1. The representative submitted that during the hearing that the DFAT Report of 2015 states that the TMVP remains active in the north and is committing various atrocities, including criminal abduction and threats. It was submitted that even if the Tribunal does not accept that the applicant was involved with the TNA or even supported the TNA in a low level capacity, the fact should not be disregarded that DFAT has reported that there remains a threat from paramilitary groups and the applicant was required to give at least 20%of his income to the Karuna group. The representative also submitted that the applicant’s inability to “put a start date” on his involvement with the TNA is “not surprising” as the events in question occurred 10 to 13 years ago and it is not “unbelievable” that involvement in a party can be gradual and cannot be marked by a definite date.

2. The Tribunal has considered the applicant’s claims to have been involved with the TNA as either a member or a supporter. The Tribunal accepts the submission that it would be difficult to put a “start date” on involvement with a particular party and differentiate when one changed support to membership, particularly when the events occurred several years ago. However, even taking such factors into account, the Tribunal does not accept that the applicant had anything other than an extremely limited knowledge of the TNA when he was interviewed by the delegate and when he attended the first hearing in January 2015. As discussed with the applicant during the most recent hearing, the Tribunal does not accept that there were difficulties with the interpreting or that he was interrupted and not permitted to provide evidence during the Department interview. The Tribunal is satisfied that the applicant’s involvement with the TNA was explored at length during the interview and he was again given considerable opportunity to articulate his knowledge of the TNA during the first hearing. The Tribunal considers that the applicant’s inability to articulate very basic information about the TNA such as when it formed, its manifestos, key aspects of its platform and to name all of the parties which merged to become the TNA[1], is indicative of the fact that the applicant had no involvement with the TNA, except perhaps to have voted for the party. The Tribunal also considers that the applicant’s evidence as to whether he was a member or a supporter of the TNA has varied and is further indicative of the fact that his claims have been manufactured. The Tribunal does not accept that the applicant does not know the difference between someone who is a member and a supporter and considers that his evidence during the hearing in relation to this issue is an attempt to overcome the inconsistencies in relation to this issue. The Tribunal does not accept that the applicant had any involvement with the TNA and considers he has manufactured this claim and the claims that flow from his purported problems with the TMVP due to his involvement with the TNA.

   [1] The evidence cited by the delegate indicates that the TNA was founded in October 2001 and was formed as an amalgamation of moderate Tamil parties as well as a number of formal elections and has participated in elections since 2001 – see also Tamil National Alliance website.

3. During the hearing, the Tribunal discussed the documents he provided to the Department. The Tribunal advised the applicant that it has concerns that the documents are not genuine and raised the issue of the availability of fraudulent documents in Sri Lanka.[2] Having considered these documents, the Tribunal does not accept that they are genuine and does not accept that the applicant was a member of the TNA or an active supporter of the TNA who assisted in election campaigns and other activities. The Tribunal also does not accept his claims that persons came to his home looking for him in April 2009 or that he and his wife were threatened at that time. Nor does the Tribunal accept that he was required to give [products] to the Karuna Group such that he was required to give 20% of his income to the Karuna group or that they came to his home and threatened him or verbally assaulted his wife. The Tribunal does not accept that the applicant was in hiding and does not accept that his wife has received threatening telephone calls since the applicant’s departure from Sri Lanka. Nor does the Tribunal accept that the applicant’s wife contacted someone from the TMPV called [Mr A] to assist herself and her husband.

   [2] See Department of Foreign Affairs and Trade, Country Report: Sri Lanka, 16 February 2015, 5.42 which states that document fraud is prevalent in Sri Lanka.

4. During the Tribunal hearing, held on 2 September 2015, the applicant confirmed that he fears harm in Sri Lanka on the basis of his involvement with the TNA and because of his [relative]’s involvement with the LTTE. The applicant was advised that the issue relating to his [relative]’s involvement with the LTTE has not been discussed previously and the Tribunal wishes to explore this issue. The applicant stated that he does not know when his [relative] was born, but he was younger than the applicant’s wife. When asked how old his [relative] was when he joined the LTTE, the applicant stated that he was [an adult]. The applicant recalled that it was in 2001 that his [relative] was killed, but he did not know when he joined the LTTE. When asked how many years before his marriage was it that his [relative] joined the LTTE, the applicant stated that he was only a member of the LTTE for a short time and he thinks it was for about a year and he possibly joined in 2000. When asked why he joined, the applicant stated that he had problems with alcohol and the family had a problem” but he does not know the circumstances relating to his [relative] joining the LTTE. The applicant confirmed that he and his wife were in a relationship at that time, but initially stated that he could not recall the year that his [relative] joined the LTTE. When asked why he had recalled in his statement that his [relative] joined the LTTE in 1999, but he had difficulty recalling it during the hearing and had said it was 2000, the applicant stated that he forgot. The applicant stated that knew he had died because in 2001 there was an agreement between the LTTE and the government and it was a short time before that time that there was fighting. A number of people were killed, including the applicant’s [relative].

5. The Tribunal has considerable doubts that the applicant has been truthful in relation to his [relative]’s involvement with the LTTE. The Tribunal considers that the applicant’s evidence during the hearing in relation to this issue was vague and unpersuasive. The Tribunal considers it problematic that the applicant was able to recall, when making his statement, that his [relative] joined the LTTE in 1999, but appeared to have forgotten this by the time of the hearing. However, for the reasons discussed below, even if the Tribunal accepts this claim it does not accept that his [relative]’s involvement some 15 years ago will result in the applicant suffering harm upon his return to Sri Lanka.

   The applicant’s return to Sri Lanka

6. At the most recent hearing, the Tribunal discussed the issues relating to returnees. In response, the applicant stated that whatever happens in Sri Lanka occurs secretly and there is no reporting of it. When advised that there is quite extensive monitoring of the human rights situation and the government has established a Commission of Inquiry in relation to past atrocities committed against Tamils, the applicant stated that it is not reported and many people have been harmed.

7. The representative submitted in a pre hearing submission to the Tribunal that it is undisputed that during the conflict numerous human rights abuses occurred and since the war ended in 2009 the Sri Lankan government has been repeatedly criticised for its “heavy handed approach” when dealing with members of the Tamil minority. It is submitted that the human rights abuses include repressing critical voices, militarisation of predominantly populated Tamil areas, disappearances, systematic rape and torture of prisoners, executions and impunity for officials abusing their power. The consequences for Sri Lanka’s northern and eastern provinces are heavy military presence, the government’s refusal to share power, an intimidation campaign by armed pro government groups such as the Karuna group, which is aimed at community leaders and political and human rights activists.  The representative refers to a UNHCR report that states that the ethnic Tamil minority is at a higher risk of disappearance, arbitrary arrest and abductions. It is submitted that although the applicant was not arrested himself, the human rights abuses committed against the Tamil minority illustrates that his fear of being targeted upon his return because of his Tamil ethnicity is neither far fetched nor remote. It is also submitted that the TNA and LTTE were reportedly in close contact until the defeat of the LTTE and these links have not been investigated, but in January 2014 the Ministry of Defence announced that such an investigation is currently being considered. It is submitted that another factor is the applicant’s [relative]’s links with the LTTE and it is “undisputed and supported by the country information that Tamils with suspected LTTE links continue to be at risk of arbitrary arrests, torture and execution”.

8. It is also submitted that the applicant fears harm because of his membership of a particular social group of failed asylum seekers. It is submitted that it is important to look at the totality of the applicant’s circumstances, including that he is a relative of an LTTE member, he is a failed asylum seekers, he was a member of the TNA, and has been threatened by the CID and the Karuna group and the “cumulative effect” of the applicant’s circumstances give rise to a well founded fear of persecution for a Convention reason. It is submitted that the applicant would almost certainly arouse the suspicions of the authorities upon his return and an investigation could lead to a perception that a Tamil who fled Sri Lanka is suspicious and has LTTE Links. The representative refers to reports by Human Rights Watch and Freedom from Torture, dated 2012, and submits that in November 2013 the Australian government agreed to donate two navy ships to Sri Lanka and the issue of returned asylum seekers is highly sensitised and the applicant will be charged under the Immigrants and Emigrants Act, and those convicted can anticipate one year in prison. It is submitted that it is not open on the available evidence to conclude that the applicant will not be jailed if convicted. It is also possible that if released on bail, the applicant could be interrogated in accordance with the Bail Act, s.25 which allows a police officer to “interrogate the applicant” with respect to any offence specified in the application made under section 21”. It is further submitted that it is well established that torture in prison is endemic, particularly against Tamils and DFAT does not monitor court processes, nor does it follow up what happens to people convicted under the Immigrants and Emigrants Act, and the explanation for DFAT to not receive complaints is because “it is difficult to see why returnees would complain direction to DFAT having been involuntarily returned to their country after their claims for asylum were rejected by Australian authorities”. The representative also refers to the failure of the State to provide Tamils with protection and the difficulties in such persons relocating to another part of the country.  

9. During the hearing, the representative submitted that paragraph 5.26 of the DFAT report refers to the standard procedures undertaken for returnees who have departed illegally and to persons who have reasonably close links to LTTE members. It is submitted that the applicant’s [relative] was an LTTE martyr and it is known that the applicant was involved in LTTE Martyr’s day celebrations. The representative submitted that the applicant has a higher profile than a “normal” person returning to Sri Lanka and there is a real chance he will be harmed not only upon his return when being processed upon his initial arrival, but upon his return to his village. The representative also referred to the presence of 70,000 SLA troops stationed in Tamil areas and their broad powers to arrest and detain people and to torture and interrogate suspects. The representative also submitted that although there is a new government, the new president is a friend of the former government. 

10. The Tribunal has not accepted the applicant’s claims relating to any involvement with the TNA or to have been threatened or required to give [products] to the Karuna group or any persons associated with the group.  Although the Tribunal has some doubts that his [relative] was involved with the LTTE, the Tribunal is prepared to accept the applicant’s claims in this regard. The Tribunal also accepts that the applicant will return to Sri Lanka as a failed asylum seeker and that he is a Tamil from the Eastern province of Sri Lanka. The Tribunal has considered, therefore, whether these factors, when considered individually and cumulatively, will result in a real chance that the applicant will suffer serious harm upon his return to Sri Lanka.

11. The Tribunal accepts that the independent evidence indicates that Sri Lankan citizens of Tamil ethnicity suffered considerably at the hands of the Sri Lankan authorities during the civil war.   The Tribunal also accepts there is evidence of continuing atrocities against some Tamils even since the end of the war as reported by Human Rights Watch which has reported on continuing assaults against some Tamils, particularly those who were members or supporters of the LTTE.[3] A November 2013 BBC report also refers to Human Rights Watch reports of cases of sexual violence involving the security forces following the end of the civil war and to allegations of rape and torture of Tamils suspected of links to the LTTE.[4] A July 2014 report also indicates that persistent surveillance, intimidation and monitoring of former LTTE members by the security forces continues to restrict their freedom of movement and association.[5] However, DFAT has also reported that since the civil war ended in May 2009 there has been considerable change in the security situation such that the risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced.[6] Additionally, the Tribunal considers that the evidence indicates there have been substantial changes in the country situation in relation to Sri Lanka in recent years, despite continuing human rights violations and considerable mistreatment of those suspected of LTTE links or those suspected at being at risk of involvement in any resurgence of Tamil independence movements. The Tribunal notes that in December 2012 the United Nations High Commission for Refugees[7] issued guidelines which stated that: “In light of the improved human rights and security situation in Sri Lanka there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.”[8]  

    [3] See Human Rights Watch 2014, World Report 2014 – Sri Lanka, 21 January 2013. (Harrison F.2013, ‘Tamils still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November.

    [4] Harrison F. 2013, ‘Tamils still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November.

    [5] Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s future, ASA 37/011/2014, September, p. 11.

    [6] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; DFAT 3 October, Country Report on Sri Lanka, 2014 and DFAT Country Report – Sri Lanka, 16 February 2015.

    [7] UNHCR Eligibility Guidelines Sri Lanka, 2012.

    [8] United Nations High Commission for Refugees Eligibility Guidelines, Sri Lanka 2012.

12. The Tribunal also considers that the Upper Tribunal on Immigration and Asylum[9] report is consistent with the DFAT report and UNHCR reports which indicate that the Sri Lankan government’s objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan State. Its focus is on preventing both the resurgence of the LTTE or any similar Tamil separatist group and the revival of the civil war in Sri Lanka. The Upper Tribunal identifies persons at risk to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have significant role in relation to post conflict Tamil separatism. Such persons will be handed over to the appropriate Sri Lankan authorities. The decision of the Upper Tribunal also indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants and everyone in LTTE dominated areas had some level of involvement with the LTTE during the civil war. The UNHCR Guidelines indicate that certain persons have “risk profiles” which generally refer to those who have reasonably substantial LTTE links.[10] Similarly, DFAT refers to high risks for high profile former members of the LTTE who may be detained, arrested and prosecuted, and rehabilitated and intensely monitored after their release.[11]

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

    [10]  Those persons include persons suspected of certain links with the LTTE, including persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of the northern and eastern provinces of  Sri Lanka; former LTTE combatants or cadres; former LTTE supporters who may have never undergone military training who were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; LTTE fundraisers and propaganda activists and those with, or perceived as having had links to the Sri Lankan diaspora that provided funding and other support to the LTTE; Persons with family or who are dependent on or otherwise closely related to persons with those profiles. The UNHCR Guidelines also indicate that other persons who may be at risk include certain opposition politicians and political activists; certain journalists and other media professionals; certain human rights activists; certain witnesses of human rights violations; women in certain circumstances; lesbian; gay, bisexual, transgender individuals.

    [11] DFAT Thematic Report, 2014, People with Links to the Liberation Tigers of Tamil Eelam, 3 October. Lower risks are associated with former low profile LTTE members or former LTTE members living outside of Sri Lanka whom the Sri Lankan authorities may monitor depending on their risk profile; close relatives of the LTTE who are wanted by the Sri Lankan authorities may be subject to monitoring. DFAT also indicates that people with “conflict related scarring” are more likely to be the subject of adverse attention by the Sri Lankan authorities, but the cases raised from the end of the war until October 2014 do not indicate that people have been detained due to conflict related scarring.

13. The Tribunal does not accept that the evidence establishes that Tamils are at risk of serious harm on the basis of their ethnicity alone or because they are from a particular part of Sri Lanka which was an LTTE occupied area, such as the Northern and Eastern parts of Sri Lanka where there continues to be a military presence. The Tribunal considers that the reports overwhelmingly refer to problems for those with actual or suspected LTTE links. Whilst accepting evidence of continuing difficulties for Tamils in the Northern and Eastern parts of Sri Lanka, the civil war has now been over for some six years. The Tribunal accepts that the considerable conflict between Tamils and Sinhalese during the war would inevitably have resulted in continuing distrust and levels of animosity between the majority Sinhalese and the minority Tamil populations. The Tribunal accepts that the applicant’s province in the Eastern part of Sri Lanka continues to have a significant military presence. However, the applicant’s own evidence indicates he had limited involvement with the LTTE during the civil war and his only association with the LTTE is based on a relationship [to] someone who was involved with the LTTE for a short period from approximately 1999 to 2001 when he was killed. The Tribunal is not satisfied that the applicant was sought whilst he was in Sri Lanka as a result of his association with his [relative] or he was considered to have been an LTTE supporter or member or imputed with a pro-LTTE opinion during that time. The Tribunal is not satisfied that the applicant has attracted the adverse attention of the Sri Lankan authorities due to his [relative]’s involvement with the LTTE or his own past involvement in assisting the LTTE as he was required to do during the civil war. The Tribunal does not accept on the evidence before it that there is a real chance that the applicant will be mistreated, imprisoned or killed by the Sri Lankan government, the law enforcement authorities or paramilitary groups because of his relationship with his wife’s [relative] or because of any political opinion that may be imputed to him on the basis of that relationship. The Tribunal is not satisfied that the applicant has a profile that will attract the adverse attention of the authorities upon his return. The Tribunal also does not accept that the applicant will be viewed as being associated with the LTTE because he left Sri Lanka illegally by boat and sought asylum overseas. As indicated above, the Sri Lankan authorities are well aware that numerous people have sought asylum in Western countries and have done so not only because they genuinely fear harm in Sri Lanka but also for economic reasons.

1. The Tribunal has also had regard to information from DFAT which indicates that official laws or policies in Sri Lanka do not discriminate against Tamils and the government does not discriminate against Tamils in the way it in the way it applies the laws.[12] The applicant’s own evidence indicates that he has previously been employed as a [occupation]. Accordingly, the Tribunal is not satisfied that his evidence establishes that he will be unable to continue to earn a livelihood upon his return to Sri Lanka or that he will be unable to subsist in Sri Lanka. DFAT has assessed that there is no law or Government policy which hinders access to state protection on the basis of religion or race and it is not aware of any cases where people have been denied access to legal remedies based on race or religion, although there can be a lack of effective protection and redress for victims of crimes in Sri Lanka.[13] The Tribunal is not satisfied, therefore, that the applicant will suffer serious harm for reasons of his race as a Tamil or because of his actual or imputed political opinion due to his [relative]’s involvement with the LTTE. As stated above, the Tribunal has not accepted the applicant’s claims to have been imputed with a political opinion due to the TNA. The Tribunal accepts that the Karun Group and other paramilitary groups engage in extortion amongst other criminal activities. The Tribunal does not accept that there is a real chance that the applicant will face demands from the police or military groups. The Tribunal is not satisfied that there is any evidence that persons such as the applicant returning from overseas have faced demands from the police, the Karuna group or any other paramilitary groups operating in Sri Lanka.

   [12] DFAT Country Report, Sri Lanka, 16 February2015.

   [13] DFAT Country Report – Sri Lanka, 16 February 2015, paragraphs 5.2 and 5.12.

2. The Tribunal has also considered the submission that the applicant will suffer serious harm due to his status as an asylum seeker who unsuccessfully sought Australia’s protection. The Tribunal accepts that the applicant left Sri Lanka illegally. The Tribunal also accepts that it will be known upon his return that he has unsuccessfully sought asylum in a Western country. The Tribunal accepts there are reports that Sri Lankan Tamils have suffered abuse on their return to Sri Lanka. However, the Tribunal has also found that the applicant did not have any actual involvement with the LTTE apart from through his [relative] and through the provision of some assistance to the LTTE during the civil war. The Tribunal is not satisfied that the applicant was suspected of any involvement with the LTTE or that any links with his [relative] prior resulted in him being viewed as someone with LTTE links or involvement prior to his departure from Sri Lanka in mid 2012. The Tribunal also considers, as discussed above, that the independent evidence in in relation to returnees who have been harmed overwhelmingly involve persons who have had connections with the LTTE or who are suspected of such connections, or persons who have criminal connections. The information from DFAT indicates that allegations of mistreatment of returnees without LTTE links have not been substantiated.[14] The Tribunal acknowledges and accepts the submission that DFAT does not routinely monitor the situation for returnees, but there is also information from the Canadian Immigration and Refugee Board in January 2013 that the treatment of people at the airport did not depend on their ethnicity but on their political activities.[15] The Upper Tribunal also concluded that reports by Amnesty International claiming that failed Sri Lankan asylum seekers faced harm upon their return “lacked substance,” and an April 2012 press report from the UNHCR noted that it carries out regular monitoring and it has assisted the voluntary return of 1,728 Tamils in 2011 and 408 in the first quarter of 2012.[16]

   [14] DFAT 2013 Country Information Report Sri Lanka, 31 July paragraphs 3.4, 3.64. See also Freedom from Torture, Submission to the Committee against Torture for its examination of Sri Lanka in November 2011.

   [15] Immigration and Refugee Board of Canada, ‘Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants, 12 February, LKA104245.E.

   [16] UK Home Office 2012, Country Policy Bulletin – Sri Lanka, October, pp.1-8.

3. The information before the Tribunal, including from DFAT, the Upper Tribunal and UNHCR also indicates that standardised procedures apply to all cases, regardless of a person’s ethnicity or the circumstances in which they left the country. As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of immigration laws are arrested at the airport, brought before a court and charged under the Immigrants and Emigrants Act (the I&E Act). Under s.45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit such as a seaport or airport. The information indicates that returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). These processes involve police and security clearances, including checks with the person's local police station and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person’s name on immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person was of security interest or if there were evidence of involvement in people smuggling. Persons suspected of illegal departure are taken to a court to apply for bail. Bail is routinely given on the person’s recognisance, although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available. The evidence before the Tribunal also indicates that the penalties imposed on returnees by the courts for illegal departure may take the form of fines or a custodial sentence.

4. The Tribunal accepts on the basis of the above that the applicant will be questioned at the airport. The Tribunal also accepts that there is a possibility he will be held for a limited period in remand whilst waiting bail, but DFAT has reported that returnees are transported by police to the Magistrates Court in Negombo at the “first available opportunity” and it is only if a magistrate is not available because of a weekend or a public holiday that those persons who are charged are taken to the nearby Negombo prison.[17] The Tribunal accepts that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance. However, the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed. The Tribunal is also not satisfied the weight of the evidence establishes that Tamil returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment. Although the Tribunal has had regard to the submission that the applicant may receive a custodial sentence, DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.[18] The evidence indicates, therefore, that the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is considered to be an organiser of people smuggling.[19] The Tribunal does not accept there is any evidence that the applicant will be suspected of people smuggling or there is any evidence of outstanding criminal matters or that he would be on a watch list.

   [17] DFAT, Country Report: Sri Lanka:, 3 October 2014 and DFAT Country Report: Sri Lanka, 16 February 2015, 5.27.

   [18] DFAT Country Report – Sri Lanka, 16 February 2015, 5.24-5.26.

   [19] DFAT Sri Lanka: RRT Country Information Request – LKA40999, 19 October 2012, CX29741; DFAT Country Information Report NO.12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013, DFAT Report 1479, dated 4 March 2013, DFAT Country Information Report, Sri Lanka, 31 July 2013, paragraphs 3.73, 3.75, 3.77, 3.79.

5. The Tribunal considers, therefore, that the independent evidence indicates that the applicant will not be subject to a custodial sentence and the prospect of him being detained for a prolonged period of time as a penalty for illegal departure is remote. The Tribunal accepts that there is some evidence of a magistrate levying a fine of 50,000 rupees. However, according to DFAT, the fines levied by the Magistrates Court in Colombo are typically about 5,000 rupees (around AUD 40).[20] The applicant has not claimed that he will be unable to pay a fine, and the Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm. Further, the Tribunal considers that the evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine. 

   [20] DFAT Country Report: Sri Lanka, 16 February 2015, 5.28 to 5.29. DFAT reports, however, that one magistrate in Negombo typically levied fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.

6. The Tribunal is not satisfied that the evidence in relation to returnees establishes that the applicant will be singled out or treated any differently because he is a Tamil from the Eastern province or because he sought asylum overseas, and considers that questioning at the airport, being placed in a remand for a short period in what may be poor conditions, and charged for illegal departure is not because he is a Tamil, but because he left Sri Lanka illegally. The evidence indicates that this situation applies to all persons, regardless of whether they are Tamil, Sinhalese or otherwise. The Tribunal considers that factors in relation to returnees apply to anyone who has left illegally and not specifically to Tamils. The Tribunal is not satisfied, therefore, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). The Tribunal considers that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, will be applied on a non discriminatory basis under a law of general application.

7. Accordingly, having considered all the evidence in relation to the situation for returnees, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, there is very limited evidence of returnees suffering mistreatment, either upon their arrival or following return to their villages. The Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival due to his illegal departure from Sri Lanka. The Tribunal has had regard to the submission regarding the presence of paramilitary groups but is not satisfied that there is a real chance that the applicant will be targeted by members of the Karuna paramilitary group for extortion or any other reason; or that he will be targeted because his [relative] was a member of the LTTE or that he is at a “higher risk” of being harmed upon his return to Sri Lanka by the Sri Lankan authorities or any paramilitary groups. The Tribunal accepts that as a Sri Lankan Tamil from the Eastern province of Sri Lanka that he invariably had contact with the LTTE during the civil war and was required to assist in some way. However, the evidence cited above indicates that the authorities are well aware of the involvement of Tamils living in occupied areas with the LTTE. The Tribunal is prepared to accept that the applicant was involved in Martyr’s Day celebrations and accepts that his [relative] is considered a “martyr”. As stated above, the Tribunal has not accepted the applicant’s claims to have been imputed with a political opinion against the government or pro Tamil separatists as it has not accepted his claims regarding his involvement with the TNA. The Tribunal does not accept that the applicant had any adverse political profile or that he was considered to be an LTTE member or supporter due to his [relative]’s brief involvement with the LTTE several years ago. The Tribunal does not, therefore, accept the submission that there is a possibility that further investigations into the “close contact” between the TNA and the LTTE during the civil war will result in the applicant suffering harm upon his return to Sri Lanka.

8. The Tribunal is not satisfied, when the applicant’s claims and circumstances are considered both individually and cumulatively, that there is a real chance that on return to Sri Lanka the applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil ethnicity/race, his actual or imputed political opinion as opposing the SLA/the Sri Lankan authorities, his actual or imputed political opinion because he left Sri Lanka illegally, or his membership of a particular social group of persons of persons who have fled Sri Lanka illegally and applied for asylum, or any similar connotations of particular social group. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future

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

9. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The representative has submitted that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will be subjected to torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment or that he will be arbitrarily deprived of his life. It is submitted that the applicant will be in danger of being harmed by the Sri Lankan authorities, the Karuna group, or the CID if he was returned to Sri Lanka. It is submitted that Australia should take account of the consistent pattern of gross, mass violations of human rights carried out by paramilitary groups, such as the Karuna group and the issue of the applicant’s illegal departure from Sri Lanka which could result in a prison sentence.

10. The Tribunal has accepted that the applicant departed Sri Lanka illegally. The Tribunal has, therefore, accepted that it is likely that he would face questioning at the airport, arrest on charges of illegal departure, that there is a possibility he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal has also accepted there is some possibility that the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped, uncomfortable and unsanitary. The Tribunal has not accepted that the weight of the evidence indicates that Tamil returnees are being harmed if remanded for a brief period.

11. In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand centre and fined, the Tribunal has had regard to the five ‘limbs’ of the definition of ‘significant harm’ in s.36(2A). These require that there is a real risk the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act requires that the pain or suffering be ‘intentionally inflicted’ on a person. Similarly, ‘degrading treatment or punishment’ is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The definition of ‘torture’ also requires that there is an act or omission by which severe pain or suffering is intentionally inflicted on the person.

12. The Tribunal considers that the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been very limited reporting of persons suffering significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that during any questioning at the airport there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

13. The Tribunal has accepted that there is a possibility that the applicant may have to spend a brief period of time in a prison or remand. When considering whether this amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, the Tribunal has had regard to the PAM3: Refugee and Humanitarian Complementary Protection Guidelines which state that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted. The Tribunal does not accept that such an inference can be drawn having regard to the applicant’s circumstances. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’.[21] The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

    [21] See SZTKF v MIBP [2014] FCCA 282, 4 December 2014, in which Manousaridis J found that the intentionally placing the applicant, a Tamil citizen in remand whilst awaiting sentence did not establish that the harm was intentional such that it was significant harm. In an earlier decision, the Federal Circuit Court found that mere negligence without more, was not capable of amounting to intentional infliction of pain or suffering – see SZSPE v MIBP [2013] FCCA 1989.

14. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will be subject to an abduction, death or any other form of significant harm following his return to Sri Lanka or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka.

1. The applicant has not claimed that he will be unable to pay the fine and the Tribunal is also not satisfied that the scale of the fine, which is the most likely penalty, amounts to significant harm. Nor is the Tribunal satisfied that the applicant would be exposed to significant harm for any other reason.

2. The Tribunal finds, therefore, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would 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 subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

   CONCLUSIONS

3. 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).

4. 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).

5. 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

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

   Susan Pinto
   Member

   
   

   ATTACHMENT - RELEVANT LAW

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

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   Refugee criterion

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

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

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

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

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

11. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

    In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.