1311607 (Refugee)

[2015] AATA 3505

1311607 (Refugee) [2015] AATA 3505 (1 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1311607

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Susan Pinto

DATE:1 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2015 at 4:23pm

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. She is Tamil and is from [City 1] in the northern part of Sri Lanka. She is aged in her mid [age]. The applicant is married and her husband is currently residing in Sri Lanka. She arrived in Australia on a Subclass 676 (Visitor) visa [in] December 2012.

2. The applicant applied to the Department of Immigration for the Protection visa [in] February 2013. The applicant claimed that her [relative, Mr A], for whom she cared for some years, was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) in 1999. She claims that although she has had no contact with him since that time, as a result of her efforts to locate him, she has been sought by the Sri Lankan authorities. The applicant also claims that a man named [Mr B] who is a member of the paramilitary attempted to assist her to find [Mr A], but later informed the police about this matter. The applicant also claimed that [Mr B] is attempting to force her to give him land and a house she was given as part of her dowry.  The applicant fears harm from the authorities because she believes she will be imputed with a pro-LTTE political opinion. She also fears harm from [Mr B] who she believes will attempt to force her to sign her land over to him.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] July 2013. The delegate did not accept that the applicant had any adverse profile in Sri Lanka and found that her ability to depart Sri Lanka in 2008, 2009 and 2012 did not indicate she had ever been detained or sought by the authorities. Although the delegate accepted that there may be some dispute in relation to the applicant’s land, it was not accepted that the applicant’s claims as to the involvement of [Mr B] were truthful. 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 in this review are whether the applicant has a well founded fear of persecution in Sri Lanka for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing, as a necessary and foreseeable consequence of her being removed from Australia to Sri Lanka there is a real risk that she will suffer significant harm. The Tribunal must consider, therefore, whether the applicant has a well founded fear of persecution. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia that there is a real risk that she will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant indicated on the application form that her father is deceased. The applicant is [one of several] siblings. Her mother and [a sibling] reside in Sri Lanka. The applicant’s other [sibling] is an Australian citizen. The applicant also has a sister who resides in [another country]. The applicant’s husband is also residing in Sri Lanka.

6. The applicant provided a statement to the Department in which she set out her claims to fear harm in Sri Lanka. The applicant states that she is a Sri Lankan Tamil who was born in [City 1]. The applicant lived with her parents at [an address] in [City 1]. The house belongs to her. The applicant’s father was [an occupation] and whilst he was alive he tried to protect her and her siblings who were studying and facing abduction by the Liberation Tigers of Tamil Eelam (LTTE). The applicant and her family were forced to work for the LTTE whilst they were in [control]. After the Sri Lankan Army (SLA) regained control of [City 1] in [year] most Tamils were questioned and accused of assisting the LTTE. The applicant was married in 1993 and she and her husband looked after the house and cared for her parents and [sibling]. The applicant’s other [siblings] left Sri Lanka during the 1990s. The LTTE in the Vanni District recruited young boys and girls for training and abducted youths. The applicant was concerned about her brothers and her [relative, Mr A who] came to live with the applicant’s family as his own mother was unable to protect him from the LTTE. The LTTE tried to take [Mr A] and her brothers but the applicant refused. However, they were able to take [Mr A] in 1999 and the applicant has not seen him since that time. The applicant states that when the Peace Talks began in 2002 they hoped there would be permanent peace in Sri Lanka. They tried to locate [Mr A] in Vanni District but the LTTE cadres would not permit them to enter [Town 2]. The applicant came to know in about 2006 from the local LTTE cadres who were present in [City 1] that [Mr A]] was one of the senior cadres in the LTTE and his nickname was “[nickname]”. The applicant then approached the LTTE head office in Vanni and spoke to the commanders. She offered to pay money to speak to [Mr A], but they refused. She spent almost two weeks in Vanni trying to contact him. She was later told by the LTTE cadres that [Mr A] did not wish to see her. She did not know whether the LTTE cadres were lying to her and she felt that the only way forward was to contact some LTTE cadres who had left the LTTE and were working with paramilitaries.

7. The applicant states that the paramilitaries were prepared to obtain information about the LTTE cadres in exchange for money and she paid one of those persons, [Mr B], to locate [Mr A]. [Mr B] told her that [Mr A] was a senior cadre stationed in Vanni but she was too frightened to tell him the nature of their relationship because he was a paramilitary officer. The applicant tried again to enter the LTTE territory, but she was denied access because the [highway] was blocked from 2006 due to the SLA attack in [City 1] and Vanni at that time. The applicant lost all hope of seeing [Mr A] and in 2007 the SLA attacked the LTTE in Vanni district and many people died, including most of the LTTE cadres and its leader.

8. The applicant states that after the LTTE was captured many cadres escaped and the SLA was in search of the LTTE cadres. In December 2009, the applicant was summoned to the [City 1] Police station and was asked for details about her family members. The applicant gave them details of her immediate family members, but the SLA insisted she was lying and told her that one of her brothers had been involved in combat in Vanni and had escaped arrest. The applicant was repeatedly questioned and beaten for information about [Mr A] but she refused to tell them that she had another sibling who was an LTTE cadre. The officers detained her and threatened to kill her for failing to tell the truth. She was detained for nearly three months. During her detention she was beaten and the officers threatened to kill her if she did not tell them the truth. During her detention she was shocked to see [Mr B] along with other paramilitaries at the station. He pretended not to see her but she pleaded with him and told him that she would pay him money as she had before and it was than he told her he had informed the police officers about her search for [Mr A]. The applicant realised the danger she was facing and he told her that it was too late to protect her as the police officers were convinced she was working along with [Mr A] for the LTTE and they believed she knew all the LTTE commanders and cadres in Vanni. The applicant begged him to release her, and that night he took her out of the cell and drove her home. He told her he would come and collect the money and when he did so the following week he told her that she should leave the country as soon as possible because the officers have details about her visit to Vanni to search for [Mr A]. The applicant told him that [Mr A] is her [relative] and she would pay him more money to look for him because she was concerned about his welfare. The applicant promised to pay him once he found [Mr A] but she feared staying at home because the police and the army were visiting homes and taking people for interrogation. The applicant was lucky to obtain a position [as] a [occupation] and she became busy regularly travelling to Colombo.

9. In about March 2011, the SLA was conducting operations in search of ex-LTTE cadres in [location]. The applicant was afraid to face the police officers and left her home. The police officers questioned her mother as to her whereabouts and asked about her sibling’s involvement in the combat in Vanni. The applicant’s mother told them she only had [stated children] but the officers told her they had information as to another family member from her house who had been serving in the LTTE and was engaged in combat. The officers asked for the applicant and said that she had been searching for a senior LTTE cadre who escaped during the combat. The applicant’s mother was worried they would take the applicant in for interrogation again. When [Mr B] returned a few months later he told her he could not find her [relative]. He also told her that the police officers would not stop searching for [Mr A] and it would be dangerous for her if he was found. He said that the police officers suspected that she could be harbouring [Mr A] or know about his whereabouts. He said that he could keep the police away from her. He began visiting their home and ordering her to cook his favourite food. The applicant’s husband treated him with respect because he is a paramilitary and they were fearful of him.

10. During one of his visits, he came to know that the house belongs to the applicant and in August 2012 he asked her whether she would sell it to him. She was in shock and told him that they would not sell the house as they had nowhere else to go. He said she should consider transferring the house into his name. The applicant became increasingly worried because [Mr B] would visit regularly and ask her when she planned to transfer the property into his name. It had become a frequent occurrence that Sinhalese politicians and paramilitaries would take over the houses belonging to Tamils in [City 1] and send them to camps for displaced persons. In their neighbourhood one woman who refused to sell her property to paramilitaries was murdered and her naked, mutilated body was later found. The applicant’s husband tried to send her out of the country and she was luck to obtain a visa to visit her brother and his [wife] in Australia.

11. When the applicant left Sri Lanka, [Mr B] began asking about her whereabouts and suspected she had tried to cheat him. He told her husband that if she was found she would be taken away and arrested at the airport. The applicant was lucky to escape from the police officers and [Mr B] who is a criminal who works alongside the police officers. The applicant managed to save the house where her family could live peacefully. [Mr B] has been told that unless she was found and she signed the documents that the property cannot be transferred. When the applicant told her brother in Australia what had happened in Sri Lanka he asked her to lodge a Protection visa application.

12. The applicant’s husband has told her to stay away from Sri Lanka because paramilitary men are visiting her home and asking that she report to the police station. The police officers now suspect that the applicant has had direct dealings with LTTE cadres who escaped to India during the combat and she has been hiding along with LTTE cadres in India and that she went to India to engage in fund raising and passing messages to LTTE cadres between India and Sri Lanka, when in fact she went therefore a pilgrimage and no other reason. The applicant fears that she will be tortured upon her return to Sri Lanka.

13. The applicant states that the news articles relevant to her claims include those relating to violence against Tamil women; attacks on Tamil students; various reports on detention and torture in Sri Lanka and the continuation of repressive laws. The reports also discuss disappearances in [City 1] and Amnesty reports relating to inquiries of truth and reconciliation committees. Copies of some of these reports, particularly those relating to reports of abduction of Tamil students, and Amnesty reports are attached. One of the reports from Tamil Net refers to an increase of violence and reports of sexual harassment against Tamil women. A report on a Sri Lankan minister “grabbing lands of Tamils” was also included. A statement by a person to the Human Rights Commission of Sri Lanka in relation to lands encroached upon by government ministers was also included. A report from Tamil Net in relation to posters in Colombo accusing persons of “Tamil polity” was also provided.

    Application for review

14. The applicant appeared before the Tribunal on 31 August 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 her registered migration agent.

15. A post hearing submission was provided to the Tribunal on 10 September 2015. In the submission, the representative essentially repeated the applicant’s claims. He also submitted that the applicant and her family were forced to do work for the LTTE and she had to sew flags and prepare seed packets. The representative refers to the applicant’s attempts to locate [Mr A] and “with no other option” she approached a [City 1] paramilitary known as [Mr B]. The representative also refers to the applicant’s detention in 2009 and the police search for her in 2011. The representative submits that the applicant’s husband has told her not to return to Sri Lanka and police officers told her husband that they told her husband they suspect she has links with the LTTE and was travelling to India frequently during the war and engaged in fund raising and carrying messages for the LTTE. It is submitted that the applicant fears that she will be arrested or extra-judicially taken, detained, subjected to torture and extortion or cruel, inhuman or degrading treatment or even killed. The representative also refers to the findings of the delegate and the adverse conclusions drawn in relation to aspects of the applicant’s evidence. The representative refers to various country reports and submits that there is a real chance and a real risk the applicant will suffer serious harm upon her return to Sri Lanka. The submission, and the applicant’s written and oral claims, and other independent evidence, are discussed in further detail below.

    ASSESSMENT OF CLAIMS AND EVIDENCE

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

16. As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in Sri Lanka for one or more of the five Convention reasons. The representative has submitted that the applicant will suffer serious harm in Sri Lanka. It has been submitted that the applicant fears serious harm because she is imputed with a pro-LTTE opinion and anti-government political opinion; because she is of Tamil ethnicity; and as a result of her membership of a particular social group of Tamil women with LTTE links from the north of Sri Lanka.

17. The Tribunal has significant doubts in relation to the entirely of the applicant’s claims. However, the Tribunal is prepared to accept that the applicant’s [relative, Mr A], was forcibly recruited to the LTTE in 1999 and the applicant was concerned about his welfare and initiated some inquiries to ascertain his whereabouts with LTTE personnel in [City 1] and Vanni and she was told that her [relative] was an LTTE cadre and he did not want to see her. The Tribunal does not accept any of the applicant’s other claims and considers that she has manufactured her claims to have been sought by the Sri Lankan authorities, the police and the army due to her searches for [Mr A], as well as the claims that due to her pilgrimages to India that she is considered to have been engaged in fund raising and passing messages to the LTTE. The Tribunal also does not accept any of the applicant’s claims in relation to her contact with a person named [Mr B] and considers that she has fabricated the totality of these claims, including the claim that he is attempting to force her to sell her land to him. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    Claims of past harm

18. At the Tribunal hearing, the applicant confirmed she is [one of several] children and she is married with no children. The applicant’s mother lives in their home in [City 1] with the applicant’s husband, her brother and his wife. The applicant confirmed that [Mr A] is her [relative] and he came to live with them in 1990. She last saw him in 1999 when he was taken away by the LTTE. The applicant has not spoken with him since that time and she does not know where he is or whether he is alive. The applicant has no contact with his family who live in Vanni because they are angry that she allowed [Mr A] to be taken by the LTTE and she last spoke with them in 2006. The applicant last had news of [Mr A] in 2006 when she was told that he was with the Movement (the LTTE) in [Town 2]. The applicant was told at that time that he had changed his name to [nickname] and was a senior person in the camp. The applicant was told this by a person outside the LTTE camp in [City 1]. The applicant did not know the name of the person whom she asked about her [relative], but he was aware that [Mr A] was in [Town 2] in a camp. The applicant travelled to [a certain town] about two weeks later and stayed there for two weeks asking the LTTE about his whereabouts. The applicant was told that he was alive but he was unwilling to see her. The applicant was unsure whether they were telling the truth and she then contacted a man named [Mr B] whose name was given to her by friends. The applicant paid him money and he told her that [Mr A] was still in [Town 2]. She tried to travel to [Town 2] but the road was closed.

19. When asked if she tried to contact [Mr A] after that time, the applicant stated that she was searching for him everywhere and went to different places. When asked how she searched for him, and whether she asked for assistance from the Red Cross or any similar agencies, the applicant stated that she was scared she would get into trouble. When the Tribunal commented that it appears unusual that she would not have made further attempts given all the previous attempts she had made, the applicant stated that she did not know whether he had died. When the Tribunal commented that it is strange that she would not have been able to find out what had happened to him if he was a senior LTTE cadre, the applicant stated that there are many people who have not been found and escaped. The applicant also told the Tribunal that the police believe [Mr A] is still alive and she is hiding him and they have searched her house. When asked why they are so interested in her and not her other family members, the applicant stated that it is because she was the one who was looking for him and they have accused her of collecting funds for the LTTE when she travelled to India in 2008 and 2009. The applicant stated that she is the one who is suspected of hiding [Mr A] and when she was asked about him she did not give them any response. When asked what she told them during that time, the applicant stated that she did not admit he was her [relative]. When asked whether they questioned any of the other family members, the applicant stated that they did not ask her husband questions because she was the one looking for [Mr A], and [Mr B] had informed the police that she had looked for him.

1. When asked how she was able to leave Sri Lanka in 2012, the applicant stated that the local police were looking for her but there were no reports at the airport in Colombo at that time. The applicant claimed that she came to Australia because [Mr B] was pressuring her to sell the house. The police began looking for her again in 2011 and she asked [Mr B] at that time to help her. When asked why she would ask him to help her if he had reported her to the police once before she stated that he was the “only one” who could help her. The applicant owns 1 and a half of the property and the other 4 and a half is owned by her mother. When asked why [Mr B] would not try to obtain her mother’s part of the house, the applicant stated that it is because he is interested in the house which is close to the hospital and the university. The Tribunal discussed the independent evidence with the applicant and advised her that there have been significant changes in Sri Lanka and LTTE cadres have been imprisoned but many have since been rehabilitated and released. When asked why the authorities would have any interest in her, the applicant stated that they have come to her house and have accused her of hiding [Mr A]. If she returns she will be arrested and detained.

2. In response to issues raised during the hearing in relation to this issue, the representative has submitted in the post hearing submission that the applicant relied entirely on [Mr B] as she had heard from others who had lost track of their loved ones after joining the LTTE, that they were able to locate them by means of paramilitaries such as [Mr B]. She also heard that this was more effective and quicker than approaching others. It is submitted that by the time [Mr B]’s “ulterior motive came to light”, the applicant had to hide and ultimately flee the country. It is submitted that the applicant provided answers to the Tribunal honestly and credibly and she provided reasons why she was responsible for [Mr B] rather than other family members in Sri Lanka. The applicant approached [Mr B] because of her friends’ advice and it is “highly plausible that in the local camps someone with company with village cadres to search former fighters”.

3. The Tribunal has considered the applicant’s claims in relation to her past experiences in Sri Lanka. The Tribunal has some doubts in relation to almost all the applicant’s claims, but accepts that the applicant’s [relative, Mr B], was forcibly recruited to the LTTE in 1999 and she has not seen him since that time. The Tribunal accepts that the forcible recruitment of young Tamil men by the LTTE in the northern part of Sri Lanka is consistent with the independent evidence indicating that the LTTE had control of the northern part of Sri Lanka during the civil war until May 2009[1] when the government announced its military control over the LTTE and complete territorial control over Sri Lanka.[2] The Tribunal also accepts that the applicant’s evidence as to when she made these initial inquiries is consistent with independent evidence indicating that there was a ceasefire between 2002 and 2006, but after that time travel in and out of Vanni was severely restricted. The Tribunal accepts that the applicant made some inquiries with LTTE personnel in relation to the whereabouts of [Mr A] at those times and her inquiries revealed that he was in an LTTE camp and he did not want to see her, and she was unable to undertake inquiries about him after that time due to the closure of several roads and the restriction on travel.

   [1] The annual report of the Human Rights Council, Thirtieth Session, Agenda item 2, Annual Report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and Secretary General, ‘Report of the OHCHR Investigation on Sri Lanka’ dated 16 September 2015, states that the LTTE exerted significant influence and control over Tamil communities in the North and East, as well as in the large Tamil diaspora, including forced recruitment and extortion, p.13.

   [2] Department of Foreign Affairs and Trade, Country Report: Sri Lanka, 16 February 2015, p.5.

4. The Tribunal does not accept any of the applicant’s other claims as to what occurred after she made inquiries regarding her [relative]’s whereabouts in 2006. The Tribunal considers that whilst the applicant’s evidence until that point remained relatively persuasive, it became considerably less so in relation to inquiries she undertook after 2006 and the involvement of a person named “[Mr B]” in locating her [relative]. The Tribunal does not accept that when she was told by LTTE operatives that her [relative] was an LTTE cadre who did not want to see her that she then sought the services of a paramilitary officer named [Mr B]. The Tribunal considers it not credible that the applicant, who was at that time a housewife, would have sought the services of a paramilitary whom she would pay money to assist her to locate her [relative] who was recruited by the LTTE in circumstances where she had purportedly been given information by the LTTE as to his whereabouts. The Tribunal considers it unlikely that she would assume they were “lying” and instead trust that a paramilitary would be able to obtain more information than persons within the LTTE personnel. The Tribunal does not accept her explanation that she was told by friends that paramilitaries might assist persons to find relatives and considers that her evidence in relation to this issue raises serious concerns that this aspect of her claims has been fabricated.

5. Additionally, the Tribunal considers that other aspects of her claims regarding [Mr B] lack credibility. In this regard, the Tribunal considers the applicant’s claims that [Mr B] informed the police that she had been looking for her [relative], and she was then “shocked” to see him at the police station when she was arrested in 2009 due to her search for her [relative] some years earlier, to be further lacking in credibility. The Tribunal also considers that the applicant’s evidence that even though she was aware that [Mr B] had informed the authorities about her, resulting in her arrest in 2009, that she then undertook further inquiries with the assistance of [Mr B] after the end of the civil war in 2009 and continually allowed him to come into her home and to cook for him to be not credible. The Tribunal does not accept that the applicant would then seek the services of [Mr B] or that he was the “only one” who could help her, given that he had informed on her to the police and she would fail to make any other attempts to locate her [relative].

6. Importantly, the Tribunal also considers that the applicant’s evidence that the police or SLA have not sought to question her husband about [Mr A] or his whereabouts is further indicative of the fact that her claims have been fabricated. As discussed during the hearing, the Tribunal considers that had she been suspected of harbouring an LTTE operative it would not only have been the applicant who was questioned, but her husband and other family members who would presumably also have some knowledge of the whereabouts of [Mr A].  The Tribunal does not accept that if the authorities were interested in locating [Mr A] or that the applicant had genuinely been suspected of hiding him that they would not have made further inquiries with other family members. The Tribunal considers it not credible that it would only be the applicant who was questioned about this and does not accept her explanation that it was because it was only she who was looking for him and that they searched her home. The Tribunal does not accept that significantly more inquiries with other immediate family members would not have been made in an attempt to locate [Mr A]’s whereabouts. The Tribunal considers that the evidence in relation to this issue is indicative of the fact that the police or SLA are not looking for [Mr A] and have not questioned the applicant or detained her in relation to [Mr A].

7. The Tribunal does not accept the applicant’s explanation or the submission as to why the applicant would have relied on a paramilitary to make inquiries about her [relatives] to be not credible. The Tribunal does not accept that the applicant was scared to contact international tracing agencies and considers that it is likely that the applicant ceased making inquiries about her [relative] because she was aware of the fate of her [relative] and it was for this reason that she did not make any inquiries with international agencies. The independent evidence indicates that in December 2005 the LTTE stepped up a new campaign of violence and the use of landmines and targeted killings between the LTTE, rival paramilitary groups and the Sri Lankan military intelligence reached new levels. Military clashes began to occur around [City 1] and the SLA conducted military offensives inside LTTE controlled territory and the LTTE withdrew from peace talks in April 2006.[3] The independent evidence also indicates that towards the end of the civil war when the SLA advanced eastwards and recovered LTTE controlled territory between January and May 2009 that there were significant numbers of casualties, including the SLA, civilians and LTTE combatants and cadres.[4] The Tribunal considers that in the context of a significant number of LTTE casualties, that it is entirely possible that the applicant believed her [relative] had died, as she indicated during the hearing, and it was for this reason that she did not initiate any inquiries in relation to his whereabouts with agencies such as the Red Cross.

   [3] [Source deleted].

   [4] Ibid, p. 20 to 22.

8. The Tribunal also considers that the applicant’s claims that [Mr B] now wants to take control of her land to be fabricated. The Tribunal does not accept that if he wanted the applicant’s land, which is mainly owned by her mother and only partially owned by the applicant, that it would only be her property that he would attempt to obtain, and the Tribunal does not accept her explanation for why he would do so. The Tribunal also does not accept that he would not attempt to take action against the applicant’s husband, in her absence, if he was so determined to obtain ownership of the land.

9. The Tribunal also considers that the applicant’s circumstances do not support her claims that she was of interest to the Sri Lankan authorities. The applicant’s evidence indicates that she travelled outside of Sri Lanka on three occasions and was able to leave Sri Lanka unhindered in 2012. In relation to the ability to travel, the representative has submitted that the applicant came to the serious attention of the police in March 2011 after [Mr B] had informed on her in relation to her search for [Mr A]. It is submitted that this occurred after the applicant flew out of Sri Lanka for India in 2008 and 2009 and the authorities were unaware of the applicant’s links with [Mr A] at that point. As she had not conceived for a long time after marriage, the applicant wanted to go to Tamil Nadu on a pilgrimage and make a vow at a temple near Chennai. She also wanted to obtain medical advice and received a visa allowing multiple entry. The applicant was worried that she would come to the attention of the Tamil Nadu police and for that reason she did not stay in India. It is also submitted that when she came to Australia in 2012, her release from the police station in [City 1] was “clandestinely manipulated” by [Mr B] due to bribery and the trust the police had in him. At that time, there would not have been a general alert by the authorities regarding the applicant and [Mr B] would not have informed the authorities about the applicant’s absence from the house. She was fearful of leaving the airport but took the risk for the final time.

10. The Tribunal does not accept the submission in relation to the applicant’s ability to travel. The applicant claimed to have come to the attention of the authorities in 2009 when she was detained for three months and to have travelled to India prior to that time, and to have again been sought for questioning in 2011. The Tribunal has had regard to the claim that at that time it was only the local police who were interested in her and there were no reports at the airport, but does not accept that the applicant would have been able to depart Sri Lanka without any difficulties in 2012 if she had been detained for “nearly three months” in 2009 and continued to be sought for questioning. The Tribunal considers that had she been sought by the Sri Lankan authorities for harbouring a senior LTTE operative and to have been detained for three months in 2009 and sought for questioning in March 2011, that there would have been considerable monitoring of her in place and she would not have been able to freely move within Sri Lanka. The independent evidence refers to considerable monitoring of such persons and the Tribunal considers that had the authorities had any interest in the applicant such that she was thought to have been harbouring an LTTE operative that she would not have been able to leave the country without considerable difficulties in 2012. The Tribunal also considers that the applicant’s evidence indicates that from 2009 she was employed for [a] company and was travelling regularly to Colombo for her work. The Tribunal does not accept that her ability to maintain regular employment is indicative of someone who was considered to be harbouring an LTTE operative. The Tribunal considers that had she been suspected of this, and [Mr A] had not been found or it was not known what had happened to him, that she would have been questioned again about this issue after 2009, rather than having again only been sought in 2011 at which time she claims to have been able to evade the attention of the authorities even though she did not leave Sri Lanka for several months after that time. The Tribunal considers that these factors are indicative of the fact that the applicant’s claims to have been sought and harmed in 2012 as a result of her involvement in searching for her [relative] many years earlier have been fabricated.

11. As stated above, the Tribunal is prepared to accept that the applicant had a [relative, Mr A], who was forcibly recruited to the LTTE. The Tribunal does not accept, given the significant credibility problems with various aspects of the applicant’s evidence, that he was a senior LTTE operative or that she was informed of this by [Mr B] or the LTTE personnel. The Tribunal has accepted that the applicant may have initiated some inquiries in relation to his whereabouts and she did so until 2006. The Tribunal does not accept her claims to have done so in 2006 with the assistance of a person named [Mr B] or that she sought his assistance again in 2009. Nor does the Tribunal accept that the applicant was detained in 2009 or sought by the authorities in 2011 for questioning in relation to [Mr A] or that she was suspected of involvement with the LTTE because her [relative] joined the LTTE in 1999 and she had no further contact with him after that time. The Tribunal does not accept that he was considered to be her “brother” or that she was considered to have any close connection or association with the LTTE due to her family’s assistance to the LTTE during the civil war. As discussed below, the independent evidence  indicates that it is well known that almost all persons living in the LTTE controlled areas of the northern and eastern parts of Sri Lanka “necessarily had contact with the LTTE” and its civilian operation in their daily lives. The Tribunal does not accept the applicant’s claims that she was considered to be passing information to the LTTE or somehow working for the LTTE because she went to India on two occasions in order to pray and seek medical attention for [a condition]. The Tribunal is drawn to the conclusion that the applicant went to India for that purpose and did so without difficulties because she was not at that time or since that time, considered to have anything other than peripheral associations with the LTTE. The Tribunal is also drawn to the conclusion that the applicant came to Australia on a visitor visa to assist her brother with his children, and her claims have been manufactured after that time in an attempt to remain in Australia. The Tribunal considers that the applicant has fabricated the entirety of her claims to have been imputed with an LTTE political opinion or an anti-government opinion.

    The applicant’s return to Sri Lanka

12. The Tribunal accepts, notwithstanding the above, that the applicant is a Tamil woman from the north of Sri Lanka who lived in an LTTE occupied area for many years, who had a [relative] who was an LTTE cadre. The Tribunal also accepts that although the applicant left Sri Lanka lawfully and on her own passport, that it may be known that she unsuccessfully applied for asylum in Australia. The Tribunal has considered these factors, as well as the evidence set out above, in order to determine whether there is a real chance that the applicant will suffer serious harm upon her return to Sri Lanka.

13. It has been submitted that the applicant has a profile which would give rise to her requiring international protection. The representative cites from the UNHCR Eligibility Guidelines and submits that such persons include those suspected of links with the LTTE and women in certain circumstances. The representative refers to UNHCR reports that persons who in the past had an actual or perceived association at any level with the LTTE but were able to leave now face a risk of torture. The representative refers to other reports on Tamils returning to Sri Lanka, including deported asylum seekers, who have been detained and accused of links with the LTTE and to the authorities’ powers to arrest people under anti terrorism laws. The representative also refers to a Human Rights Watch 2013 report on Sexual Violence Against Tamils which refers to rape and sexual violence as one of the tools used by the SLA and police against alleged LTTE members and supporters and cites reports of violence and rape against women which has continued after the war, including the presence of “grease yakas devils” and reports of rape and sexual violence being used to torture suspected members or supporters of the LTTE.

14. The representative has submitted that there are “allegations” of the LTTE attempting to rebuild in Sri Lanka and the Tamil Diaspora is viewed with suspicion of attempts by the LTTE to rebuild. It is submitted that although there are reports of a generally improved situation in terms of check points and white van abductions, and resettlement of Internally Displaced Persons, there are still reports that persons who have suspected links to the LTTE (past or present) are being arrested and detained. The representative submits that there is a real chance that the applicant will be arrested or taken at the airport or even later on suspicion of strong LTTE links. It is submitted that she has a profile as a Tamil woman hailing from the predominantly Tamil district which at relevant times was controlled by the LTTE. She has close links ([relative]) to a high ranking LTTE cadre for whom she repeatedly searched for with the help of a former LTTE cadre who informed on the applicant and she is suspected of assisting the LTTE even in India. Being a failed asylum seeker will strengthen this suspicion even more. It is submitted that the persons who will persecute her are the “strong arms” of the government, the police, the security forces, intelligence units and paramilitaries assisting the government agencies in identifying LTTE cadres and supporters and the applicant will not be safe anywhere in Sri Lanka.

15. It is further submitted that although she will not be persecuted for the “sole reason” of being a Tamil originating from the Northern province, this racial profile heightens the risk that the applicant will be viewed with suspicion as being pro-LTTE and having pro-LTTE links and political opinions and her racial profile is such that her fears are well founded. It is further submitted that the applicant’s “brother” was an LTTE leader and police, CID and paramilitary are aware of her links and have already detained and interrogated in the past and she has been warned not to leave her village without permission. The paramilitary actions have contributed by imputing an anti-government opinion and a pro-LTTE opinion and it can be concluded that she has an imputed pro-LTTE political opinion. The representative submits that country situation reports indicate that there is more than a real chance that persons falling under these particular social groups will face danger of serious harm by reason of race and political opinion if they were forced to return to Sri Lanka. The representative provided an article from the “Tamil Guardian”, dated 6 February 2015, which referred to two Tamils from Batticaloa in the Eastern province who were arrested at Colombo airport after they returned from the Middle East. The report states that the men had been working in the UAE and Qatar and had returned to visit their wives and children. The Tamil National Alliance (TNA) spokesperson said that they had previously returned without difficulties and that the situation shows that “despite the new government saying it is welcoming back diaspora Tamils, it is clear the situation is not yet conducive or safe to return”. 

1. The Tribunal has accepted that the applicant’s [relative, Mr A], was forcibly recruited to the LTTE and that the applicant initiated some inquiries in relation to his whereabouts. The Tribunal has not accepted any of the applicant’s other claims to have been questioned and interrogated or sought as a result of these inquiries many years ago. However, the Tribunal accepts that the applicant is known to have had some association with the LTTE many years ago. The Tribunal also accepts that, like most families living in the North of Sri Lanka, that the applicant and her family were forced to do work for the LTTE and the applicant sewed LTTE flags and prepared seed packets for food cultivation. The Tribunal does not accept that this will result in the applicant being considered to be an LTTE supporter or sympathiser upon her return to Sri Lanka. As discussed during the hearing, whilst the Tribunal accepts that there continues to be a strict military presence in the north and east of Sri Lanka since the end of the war, DFAT has reported that there have been significant improvements in the security situation in these areas, although incidents of violence can occur. Additionally, although the Tribunal also accepts that there is evidence of paramilitary groups operating in the north and east, there is also evidence that many thousands of former LTTE cadres and combatants in the north and east have been sent to rehabilitation camps and since released. The reports indicate that many of them have been “reintegrated” into society and released.  As stated above, the evidence also indicates that it is well known that almost all persons living in the LTTE controlled areas of the northern and eastern parts of Sri Lanka “necessarily had contact with the LTTE’ and its civilian operation in their daily lives.

2. The independent evidence indicates that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection. UNHCR’s Eligibility Guidelines state that due to the improved human rights and security sitaution there is no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. 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.[5] 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.[6] 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.[7] 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.[8] The Tribunal also notes that in December 2012 the United Nations High Commission for Refugees[9] 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.”[10]

   [5] 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.

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

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

   [8] 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.

   [9] UNHCR Eligibility Guidelines Sri Lanka, 2012.

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

3. The Tribunal also considers that the Upper Tribunal on Immigration and Asylum[11] 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.[12] 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.[13]

   [11] 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).

   [12]  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.

   [13] 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.

4. 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 involvement. 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 and a half 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 northern part of Sri Lanka continues to have a significant military presence. However, the applicant’s own evidence indicates she had limited involvement with the LTTE during the civil war and her only association with the LTTE is based on her [relative], whom the Tribunal has not accepted was a high ranking member of the LTTE. The Tribunal is not satisfied that the applicant was sought whilst she was in Sri Lanka as a result of her association with her [relative] or she 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 her [relative]’s involvement with the LTTE or her own past involvement in assisting the LTTE as she 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 her relationship with [her relative] or because of any political opinion that may be imputed to her 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 her return. The Tribunal also does not accept that the applicant will be viewed as being associated with the LTTE because she left Sri Lanka 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. 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.[14]

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

5. The Tribunal does not accept, therefore, that the applicant, a woman who was previously working for [a] company and came to Australia to assist her brother to care for his young children, who was not herself a member of the LTTE and whose only association was with a [relative] who was forcibly recruited in 1999 and with whom she has not seen since that time, will be imputed as having an LTTE profile or to be in any way considered a threat to the Sri Lankan state. As indicated above, whilst the Tribunal has been prepared to accept that the applicant may have initiated some inquiries relating to her [relative]’s whereabouts, the Tribunal does not accept that she did so after 2006 or that she ever did so with the assistance of a paramilitary called [Mr B]. The Tribunal does not accept the submission that the applicant is at a heightened risk of harm due to her inquiries some years ago about her [relative]’s whereabouts. A report cited by the delegate also indicates that there is no evidence to suggest that Tamils returning to Sri Lanka after living in Western countries are exposed to particular security arrangements or at risk of harm. The Tribunal does not accept that the applicant has any adverse political profile with the Sri Lankan government or any paramilitary groups at the time she left Sri Lanka or that she will have any such profile upon her return to Sri Lanka.

6. Whilst the Tribunal has had regard to the submissions regarding violence against Tamils and some reports of Tamils who have sought asylum being questioned and interrogated, the Tribunal does not accept that the applicant will be considered to have been involved with the LTTE or in any pro-independence activities whilst she has been in Australia living with her brother. Additionally, whilst the Tribunal accepts evidence of violence against Tamil women,[15] the applicant is a married woman who has the support of her husband. She has not claimed she has been assaulted before on the basis of her ethnicity and gender and the Tribunal is not satisfied that there is a real chance that she will suffer serious harm for these reasons if she returns to Sri Lanka. Nor does the Tribunal accept the submissions, although raised in the context of the Complementary Protection provisions, that there is a real chance that the applicant will suffer harm because her siblings are living in Western countries and she will be considered “therefore wealthy”;  or that there is a real chance that she will be subject to extortion

   [15] Department of Foreign Affairs and Trade, Country Report: Sri Lanka, 16 February 2015, p.16.

7. 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 her actual or imputed political opinion, her ethnicity or her membership of a particular social group, or for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason should she 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 her being removed from Australia to Sri Lanka that there is a real risk that she will suffer significant harm?

8. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. It has been submitted that the applicant also qualifies for Complementary Protection. The representative submits that this is due to her Tamil ethnicity; her residence in previously LTTE controlled areas; the applicants siblings are living in Western countries  “therefore wealthy”; the applicant’s previous links with the LTTE, namely her “[relative] brother” who was an LTTE leader and her own participation in the LTTE in early days; her age and gender, being a Tamil woman; her previous contact with the authorities and accusations, interrogations and detention; the susceptibility of the applicant to extortion and the risk of her property transfer or otherwise charge. The representative refers to country information regarding the treatment of Tamils and persons suspected of involvement or harbouring an LTTE operative.

9. The Tribunal has not accepted the applicant’s claims, as set out above, to have been of any interest to the Sri Lankan authorities or that she was imputed with a pro-LTTE opinion or an anti-government opinion or that there is a real chance she will suffer serious harm because she is a woman from the North or because she is a Tamil or as a result of a combination of such factors. The Tribunal is also not satisfied that there is a real risk that the applicant will suffer significant harm for reasons of her siblings living overseas, her susceptibility to extortion or for any other reason upon her return to Sri Lanka. The Tribunal has also not accepted that there is a real chance that anybody will attempt to obtain her property forcefully. For the same reasons, the Tribunal is not satisfied that there is a real risk that anybody will attempt to force the applicant to sign over her property.

10. 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 she would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that she would be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

    CONCLUSIONS

11. 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).

12. 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).

13. 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

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

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

15. 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 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

16. 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.

1. 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.’

2. 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

3. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  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

4. 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.