1312952 (Refugee)

[2015] AATA 3513

1312952 (Refugee) [2015] AATA 3513 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1312952

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Mara Moustafine

DATE:8 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2015 at 10:04am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The [applicant] is a [age]-year-old citizen of Sri Lanka, born in Batticaloa district, Eastern Province in [year]. He is an ethnic Tamil of Hindu religion. The applicant’s wife and [children], as well as his parents and [siblings] remain in Sri Lanka.

3. The applicant arrived in Australia as an unauthorised maritime arrival [in] June 2012. He applied for a Protection visa [in] November 2012. A delegate of the Minister for Immigration refused to grant the visa [in] August 2013 and he has applied to this Tribunal for review of that decision, a copy of which he provided to the Tribunal.  A summary of the relevant law is set out at Appendix A. 

4. The applicant appeared before the Tribunal on 7 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

5. The issues in this review are whether the applicant’s claims are credible; whether he has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

   Materials before the Tribunal

6. The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal, including those set out in Appendix B.  At the start of the hearing before the Tribunal the applicant affirmed that his evidence to date was true and correct.

7. The Tribunal has also had regard to a range of independent country information about Sri Lanka, including that referred to in the delegate’s decision and provided by the applicant’s representative. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Applicant’s claims

8. The applicant provided copies of his Sri Lankan passport, national identity card and driver’s license.

9. According to his Protection visa application, the applicant completed [a certain] grade at school then helped his father with his farm. Around 2002, after the area where they were living fell under LTTE control, the applicant’s family moved to a government-controlled area in order to avoid him being conscripted by the LTTE. In 2004 the applicant went to [Country 1] to [work] for about 6 months.  On return he worked [in various occupations]. In 2007 or 2008, his father bought him a three-wheel auto taxi and he established an auto stand.

10. The applicant’s claims relate to his involvement as an auto driver for a Tamil candidate in the 2008 [elections] named [Mr A]. The applicant claims that he drove [Mr A] around the time of the election and also drove people from his group to schools where voting was taking place and to their party office on Election Day, although he does not know the name of the party.  

11. After the election, men in a white van blindfolded and abducted the applicant on two occasions. The first time, he was asked why he drove [Mr A] and whether he was doing anything else for his group. The applicant told the men he was just driving for hire. They told him not to drive for [Mr A]’s group anymore and released him on the other side of town. The applicant does not know who these men were but thinks they were from the Karuna group or the TMVP party as they told him they had won the elections.

12. The second time, men in a white van again abducted the applicant after he drove [Mr A] to his office. He was afraid to say no, as he feared that [Mr A] would cause problems for him as all political parties were linked with military groups. The men beat the applicant; asked him why he drove [Mr A] when told not to; warned him never to pick him up again; and when they found his old ID card with his address from the LTTE-controlled area in his wallet, asked him if he was involved with the LTTE. They then released him near a beach.

13. The applicant then stopped driving, got married and moved to live at his wife’s house some 15 kilometres away. In March 2009 he left to [work] in [Country 2] as people were still coming to ask for him at the auto stand and at his mother’s house. After his mother told these people that the applicant had left the country, there were no more issues. However, after he returned to Sri Lanka and visited his mother’s house at the end of 2011, armed men found out that he had returned and again came asking for him. This prompted the applicant to leave Batticaloa and eventually Sri Lanka.

14. The applicant fears that, if forced to return to Sri Lanka, he will be abducted or killed by the Karuna group or that they might frame him by planting a bomb in his house, which the CID would then come and find. This is because they think the applicant is involved in an opposition political party and could be associated with the LTTE; and that they might use scars on his [body] from a bomb explosion on his farm to implicate him with an LTTE association.

15. The applicant believes that, as the Karuna group is spread all over Sri Lanka with ties to the government, police and military, relocation is not feasible and state protection is not available to him.

16. In a submission dated 17 April 2013 the applicant’s representative provided new information from the applicant’s family in Sri Lanka, who had advised that [Mr A]’s full name was ‘[Name 3]’ and that he was a current [officeholder] [representing] the EPRLF. The submission indicated that [Name 3], who stood as part of Independent group [number], was not initially elected, but was appointed a few months after the election, when his fellow EPRLF member resigned to stand in the Eastern provincial [elections]. The representative included two documents from [a publication] relating to this change dated [in] January and [in] October 2008.

17. In a pre-hearing submission to the Tribunal the representative submitted that the applicant has a well-founded fear of persecution arising from his Tamil ethnicity; his imputed political opinion against the TMVP/Karuna group (due to having been hired to drive for an opposition party candidate and voters around the time of the 2008 [elections]) and as a supporter of the LTTE (as he lived in an LTTE controlled area in the east; had scarring from a bomb explosion; and his Tamil ethnicity); and his membership of the particular social groups of Tamil men who are perceived to be associated with the LTTE and returned asylum seekers of Tamil ethnicity. The submissions elaborated on these issues, including excerpts of country information regarding the situation in Sri Lanka.

18. Relevant points from the applicant’s hearing before the Tribunal were as follows:

    a.His parents and siblings are still living in Batticaloa, where his [family members] are [farmers]. When he spoke to the family recently, they told him not to come back as shootings and abductions were still happening.

    b.Nothing had happened to his family, although the Pillayan/Karuna group, who were operating with the army, came to his house a couple of times looking for him. The last time was 6 months ago when they came to his mother’s house, where his wife was also living at the time. They stopped coming when they found out the applicant was in Australia. Asked how they knew he was in Australia, the applicant said variously that he only thought they knew this; that they thought he had gone to [another country] and now suspected he was in Australia as he had not returned after two and a half years when his visa would have expired; and that they told his mother they knew he was in Australia.

    c.Asked whether he or his family had ever been part of the LTTE, the applicant said yes. However, he had not disclosed this previously as he was too scared to tell the Department because when he first arrived in Australia, Customs suspected that he was in charge of the boat and was a smuggler as he had [certain physical characteristics]. He also feared he might be sent back to Sri Lanka as many countries banned the LTTE.

    d.The applicant said he was recruited by the LTTE in November 1999, along with [some] friends, when walking home from school. Karuna, who was then in charge of the LTTE in his area took them and trained them for three months’. The applicant was initially asked to study [a certain topic] because he was an educated person. In mid 2000, after he tried to escape from the LTTE, he was sent to Vanni by boat. There, he was trained in [other work] and then worked for the LTTE in Vanni doing [work] in Vanni.

    e.After the ceasefire in mid 2002, the applicant returned to Batticaloa and [worked] for the LTTE at [location]. At the time Karuna was head of the LTTE for the Eastern province and [Mr B] was in charge of the applicant. He worked for the LTTE until Karuna split from the LTTE in February 2004. The applicant then left for [Country 1], although [Mr B] came looking for him and smashed his parents’ house prompting them to move to the town.

    f.When the applicant finalised the [work], he gave copies to [Mr B] and to Karuna and kept a copy for himself.  However, when the army came visiting, his parents were scared and burned these documents.

    g.He flew to [Country 1] on his own passport. When he returned seven months later in July 2005, his father bought him a [shop] and he also [did other work] after the sunami. At that time, he had no problem with anyone.

    h.He was never involved in anti-government activities or questioned by authorities about LTTE links or other political activities, either before or after the end of the war.

    i.He was never arrested or detained by police or security and had no outstanding criminal matters. 

    j.His problems started when [Mr A], one of the [candidates] in the [2008] election campaign, hired him to drive him in his auto. He worked for [Mr A] for 20 days, driving him to his office and to attend his political activities. On Election day he also drove [Mr A]’s people to the school where voting was taking place. He did not know the name of [Mr A]’s party.

    k.Although the TMVP won the majority of votes in the election, [Mr A] told him when the votes were counted that won the campaign for his party.

    l.When he was abducted a couple of weeks after the election, questioned why he drove [Mr A] and warned not to do this, he realised his abductors were from the TMVP Karuna group because they told him ‘we have won’.  Asked why the TMVP would bother abducting him after they had won the election for driving a candidate from an unsuccessful party, the applicant said in Batticaloa, they would not do anything until they won, but would show their true colours afterwards.

    m.He volunteered that there were different paramilitary groups like the Karuna group and all operating with the Army, including the EPRLF, [Mr A]’s group. Asked why he previously told the Tribunal he did not know which group [Mr A] was from, the applicant said what he meant was that there were different groups which had split from the LTTE, such as the EPPP, EPRLF and [Mr A]’s group, whose name he did not know. He said there was a party sign above [Mr A]’s office, but he did not pay attention to what party it was since he did not have any involvement with it.

    n.The second time the Karuna group abducted him, they beat and tortured him and found out from his old identity card that he had lived in the LTTE controlled area. One of the groups recognised the applicant from the time he worked [for the LTTE]. As a result they suspected him of having taken some of the LTTE’s money, which they want.

    o.At the time he left Sri Lanka in 2012, he feared that, if the Karuna group abducted him again, they would demand money; and [he] would be unable to prove that he had not taken the money and would be shot. Because of this fear he left for to Australia.

    p.He fears that if he returns to Sri Lanka now, ‘they’ (including the Karuna group, TMVP, who work with the government, as well as the CID) will shoot him because they suspect that he took LTTE money, which they want.

    q.He confirmed that there were no other reasons he was afraid to return to Sri Lanka and that he had never been questioned by the CID or other government authorities in the past, either at the airport or anywhere else, including when he returned from [Country 2] in June 2011.

    r.He confirmed that the first time he was abducted he was not asked for money but was taken because he drove [Mr A], warned and released. However, since one of his abductors recognised him from his time as an LTTE [employee], his main problem was his involvement with the LTTE as everyone in his area knew that he worked in [a certain] department of the LTTE. 

    s.People who worked for the LTTE went through the government’s rehabilitation program but he did not. Now the Army was going to each house checking if anyone was involved with the LTTE and trying to get money; or otherwise taking people to the 4^th floor CID for torture. This had happened to [a relative] on his return from [overseas].  

    t.The Karuna group was still armed and working with the CID and the army, including at the airport, where they were identifying people returning to Sri Lanka. He feared that, if he returned, these people would inform the government about him and the authorities would harm him.

19. In a post-hearing submission on 14 July 2015 the representative provided information regarding a number of issues that she considered needed further clarification. She summarised the applicant’s claims for protection on the basis of his Tamil ethnicity, imputed political opinion as Tamil with suspected links to the LTTE, exacerbated by his profile as a Tamil failed asylum seekers as follows:

    a.Fear that the Karuna group will kill him because of the work he did for the LTTE in [a certain line of] work;

    b.Fear the authorities will harm him because of his perceived threat to the integrity of Sri Lanka as a single state based on his previous work with the LTTE;

    c.Knowledge of his previous work with the LTTE had now spread beyond those who knew of it and had identified him. [] ?

    Consideration of applicant’s claims

20. On the basis of the applicant’s identity documents and, in the absence of evidence to the contrary, the Tribunal accepts that he is a Sri Lankan national from the Eastern province and Tamil by ethnicity, as claimed, and that Sri Lanka is his country of reference and receiving country.

21. In assessing the applicant’s claims, the Tribunal has carefully considered and weighed a range of independent material, including the latest information from the Department of Foreign Affairs and Trade (DFAT), as well as that referred to in the delegate’s decision and in submissions from the applicant’s representative, relating to the situation of Tamils in Sri Lanka, as well as the treatment of failed asylum seekers who departed Sri Lanka illegally[1].

    Applicant’s experiences in Sri Lanka prior to his departure in June 2012

    [1] DFAT, Country Report Sri Lanka, 16 February 2015; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012; DFAT, DFAT Thematic Report: people with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014; 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); US Department of State 2014, Country Report on Human Rights Practices 2013 – Sri Lanka, 27 February 2014.

22. For the reasons outlined below, the Tribunal did not find the applicant to be a truthful and credible witness regarding his experiences in Sri Lanka and the reasons he fears persecution there.  The applicant’s evidence about central aspects of his claims was inconsistent, implausible and unsupported, including by country information from independent sources.

23. Significantly, the applicant introduced new evidence regarding key incidents that occurred in Sri Lanka prior to his departure for Australia at his hearing. Indeed the very basis of his claims changed from his Protection visa application to his evidence to the Tribunal.

24. In his statutory declaration the applicant’s claims centred on his being targeted by the Karuna/TMVP group because he transported a candidate from an opposition political party, the name of which he did not know, during and after [elections] in Batticaloa in [2008]. He made only passing reference to being questioned about possible LTTE links in the context of his old identity card showing he had once lived in an LTTE-controlled area (paragraphs 10 -12 refer); and both he and his representative relate his fear of harm as an LTTE supporter to his once living in an LTTE controlled area, [scarring] from a bomb explosion and his Tamil ethnicity (paragraphs 14 and 17). The applicant made similar claims in his Department interview, as recorded in the delegate’s decision, a copy of which he provided the Tribunal. He also confirmed that neither he, nor anyone in his family, had ever been a member or associated with the LTTE.

25. By contrast, the applicant told the Tribunal that he had been recruited into the LTTE in 1999 by Karuna himself, who was then in charge of the LTTE in his area; was trained by them and later [worked] for the LTTE until the split between Karuna and the LTTE in February 2004 (paragraphs 18.d and 18.e). He now claimed that his main problem was his involvement with the LTTE as during his second abduction he was recognised by one of the group from his time as an LTTE [employee]; and that he feared harm from the Karuna group or authorities over money they suspected that he had taken from the LTTE (paragraph 18.p).

26. When asked about the shift in his evidence the applicant claimed that he did not disclose his involvement with the LTTE earlier because he was suspected of being a people smuggler when he first arrived in Australia and feared he would be sent back to Sri Lanka (paragraph 18.c). The Tribunal does not find this persuasive. As discussed with the applicant, in the course of his Protection visa process, he had several opportunities after his entry interview to reveal this significant information, including interactions with his advisers and the Department. The fact that he did not do so, yet signed several declarations attesting to the truthfulness of his evidence raises doubts as to his overall credibility. Moreover, the Tribunal notes that, according to the delegate’s decision, when asked why he did not mention at entry that he was even suspected of having LTTE connections, the applicant responded ‘I forgot them’; and answered ‘no’ when asked by the Department at interview whether he or anyone    else in his family was associated with the LTTE.

1. Further, as discussed with the applicant, the Tribunal finds it implausible that he would not know or remember the name of the party to which election candidate [Mr A] belonged after driving him for 20 days, transporting his supporters during the election and going to his office, which, by his own evidence, displayed party signage. Given the applicant’s evidence that he was abducted by the Karuna group because of his association with this politician, the Tribunal finds disingenuous the applicant’s claim that he paid no attention to which party he belonged as he himself was not involved in it (paragraph 18.m).

2. The Tribunal is also concerned that the applicant’s evidence that [Mr A] won the election for his party and told him that he won a [seat] as soon as the election results were declared is inconsistent with the information provided by the representative that [Mr A] had been identified by the applicant’s family as EPRLF candidate [Name 3] and that he was only declared [an officeholder in] October 2008 following the resignation of one of his party colleagues (paragraph 16 refers).

3. When asked about this inconsistency, the applicant told the Tribunal that [Mr A] shifted his evidence to say that he and another candidate had won the same number of votes so was sharing the [seat] on a 6-month basis. As for why the Karuna group would pursue the applicant for his association with [Mr A] in [2008], six months before [Name 3] was declared [an officeholder], the applicant said they didn’t care whether or not [Mr A] won a seat, only that he worked for an opposition candidate.

4. In view of the multiple inconsistencies and concerns addressed above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Sri Lanka and the reasons he fears returning to that country; or that any of his evidence can be relied upon.

5. The Tribunal is not satisfied that the applicant ever drove an opposition candidate, named [Mr A] or [Name 3] during the [2008] [elections] or was involved in any other way with opposition political parties. Nor is the Tribunal satisfied that the applicant was ever targeted or abducted by the TMVP/Karuna group or any other militant group, beaten, tortured or admonished for his work for the opposition candidate or in revenge for such activities.

6. The Tribunal is not satisfied that the applicant was ever recruited into the LTTE, nor trained by them as [occupation], or ever worked for them in such a capacity and was therefore suspected of having taken LTTE money. Nor is the Tribunal satisfied that the applicant left Sri Lanka for fear that the TMVP/Karuna group would abduct him, ask him for money or shoot him because of any past LTTE association. In the Tribunal’s view, the applicant fabricated the claims of his LTTE links after the Department refused to grant him a Protection visa in an attempt to establish that he was of interest to the Sri Lanka authorities.

   The applicant’s Tamil race/ethnicity and political profile

7. The applicant’s representative has submitted that should he be returned to Sri Lanka, the applicant is at real risk of serious and significant harm (including arbitrary detention, torture and possibly death) from the Sri Lanka authorities (including the CID and the Army) and members of the TMVP or Karuna groups linked to the ruling party on account of his Tamil ethnicity, his imputed political opinion as a Tamil and his past assistance to the LTTE.

8. As discussed with the applicant, the Tribunal accepts that, at least up to the end of the civil war in May 2009, Sri Lankan citizens who were Tamils, especially those living in the LTTE-dominated Northern and Eastern provinces, were at a risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity.  However, there is general consensus among independent sources that, since the end of the civil war 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.

9. In this context, the United Nations High Commission for Refugees (UNHCR) Guidelines on Sri Lanka[2] issued in December 2012, state that for assessment of refugees in Sri Lanka, there is no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity.  These guidelines list a series of profiles of persons with ‘more elaborate’ links to the LTTE than prior residency in the North and East, who might continue to be exposed to treatment that may give rise to a need for international refugee protection, depending on the individual circumstances of the case[3].

   [2] Referenced in both the delegate’s decision record submitted by the applicant with his review application and his adviser’s submission of 14 July 2015.

   [3] 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.

10. For reasons discussed above, the Tribunal has not accepted that the applicant himself had any past association with the LTTE as claimed. It does not accept that he was recruited, trained by or worked for the LTTE as [occupation] or in any other capacity. By his own evidence at paragraph 18.h, the applicant was never questioned by authorities about LTTE links, either before or after the end of the war.  While the applicant has claimed that he was identified as LTTE by a member of the Karuna group during abduction in 2008, for reasons discussed above, the Tribunal does not accept that he was so identified or that any such abduction took place.

11. In her post-hearing submission[4], the applicant’s representative submitted that the applicant’s relationship with his father ‘who passed away following torture by the army for presumed membership of the LTTE, demonstrates a strong perceived link to the LTTE’; and that this, as well as the applicant’s relationship with his brother, takes him outside the ‘general’ situation. The Tribunal notes that the applicant made no mention of this in his own evidence. On the contrary, he told the Tribunal at paragraph 18.a and 18.b that both his parents and brother were still living in Batticaloa and had experienced no problems. In light of the above, the Tribunal does not accept that the applicant has a risk profile identified by the UNHCR as giving rise to a need for international refugee protection.

    [4] Submission of 14 July 2015 at page 8.

12. The Tribunal notes that the guidance decision of UK Upper Tribunal[5] identifies persons at risk in Sri Lanka today to be those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they have, or are perceived to have, a significant role in relation to post conflict Tamil separatism. By his own evidence, the applicant has never been involved in activities against the Sri Lankan government or the Sri Lankan state (paragraph 18.h). The Tribunal has not accepted his claims that he worked for the LTTE as [occupation] or in any other capacity. It does not accept, therefore, that the applicant will be  ‘assumed to support the LTTE and represent a threat to the unity of Sri Lanka today’, nor that he was ‘continuing to assist the LTTE from overseas in terms of securing more financial support for the LTTE’, as claimed in the representative’s post-hearing submission. Nor is the Tribunal satisfied that the applicant will be identified as an LTTE supporter on the basis of some [scarring] from a bomb explosion in the past, as claimed[6].

    [5] 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).

    [6] While DFAT Thematic Report, 2014, People with Links to the Liberation Tigers of Tamil Eelam, 3 October indicates that 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. As the Tribunal has not accepted that the applicant was a driver for an opposition candidate during the 2008 [elections], it does not accept his claim that he may be targeted by the Karuna group as a perceived supporter of the opposition party or the LTTE. The Tribunal accepts that the Karuna group and other paramilitary groups engage in extortion amongst other criminal activities. However, the Tribunal is not satisfied that there is any evidence that persons such as the applicant returning from overseas have faced demands from the Karuna group or other paramilitary groups operating in Sri Lanka.

14. In view of the above, the Tribunal is not satisfied that the applicant has a profile that would put him at risk of serious harm for a Convention reason in Sri Lanka today.

    The applicant’s status as a failed Tamil asylum seeker and his illegal departure from Sri Lanka

15. The applicant’s representative has claimed that the applicant has a well-founded fear of persecution in Sri Lanka as a failed asylum seeker from Australia, who may be at an elevated risk of harm and perceived as having LTTE links because of his Tamil ethnicity; and subjected to additional screening processes, both at the airport and on return to his home in the east of Sri Lanka.  

16. The Tribunal has had regard to the representative’s submissions regarding the detention, torture and other ill treatment of returnees, based on reports from several non-government organisations. The Tribunal accepts that there is some evidence of returnees suffering such harm. However the weight of the evidence indicates that such cases usually involve persons who have had, or are suspected of having, links with the LTTE. The information from DFAT also indicates that allegations of mistreatment of returnees without such links have not been substantiated[7].

    [7] DFAT 2013 Country Information Report Sri Lanka, 31 July paragraphs 3.4, 3.64

17. The Tribunal acknowledges and accepts the submission that DFAT does not routinely monitor the situation for returnees. However, information in the Canadian Immigration and Refugee Board reports referred to by the representative suggest that the treatment of people at the airport did not depend on their ethnicity but on their political activities; and that not all Tamils in the north and east are subjected to screening, only those individuals for whom the government claims there are ‘reasonable concerns’ of having links with the LTTE[8]. 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. 

    [8] Immigration and Refugee Board of Canada 2013, ‘Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants, 12 February, LKA104245.E; and Immigration and Refugee Board of Canada 2015, ‘Sri Lanka: Treatment of suspected members of supporters of the Liberation Tigers of Tamil Eelam (LTTE), including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects (2011-January 2015), 11 February, LKA105041.E.

18. The Upper Tribunal report also indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants and that everyone in LTTE dominated areas had some level of involvement with the LTTE during the civil war. It found that in post conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government. 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 sought asylum overseas or left Sri Lanka illegally by boat.

19. The information before the Tribunal, including from DFAT, the Upper Tribunal and UNHCR indicates that standardised procedures apply to all cases, regardless of a person’s ethnicity or 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 through an official port of entry or exit such as a seaport or airport. 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 in immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person were 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. 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.

20. 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. 

21. 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 and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of 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 not satisfied the weight of the evidence establishes that returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment.[9]

    [9]DFAT 2014, Sri Lanka: Country Report, 3 October 2014.

22. The information before the Tribunal indicates 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[10]. 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).  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. 

    [10] 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.

23. The Tribunal accepts that the applicant departed Sri Lanka unlawfully and that it will be known upon his return that he has unsuccessfully sought asylum in a Western country.  The Tribunal accepts on the basis of the information discussed above that the applicant would be subjected to such processes on return. The Tribunal has found that the applicant did not have any adverse political profile before he departed Sri Lanka. By his own evidence at paragraph 18.i, the applicant does not have any outstanding criminal matters that might make him a person of interest to the authorities. Further, the Tribunal does not accept there is any evidence that the applicant will be suspected of people smuggling.

24. Having considered the evidence as set out above, the Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival, even having regard to his illegal departure from Sri Lanka, and the authorities’ awareness that he has applied for asylum in a Western country.

25. The Tribunal accepts that the applicant will face questioning at the airport, may be placed in remand for a short period and charged because he left Sri Lanka illegally. There is a possibility he will be held for a limited period in remand while awaiting bail, in conditions that can be poor due to overcrowding and unsanitary conditions. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or applied for asylum overseas or singled out or treated differently because he is a member of a particular social group of failed Tamil asylum seekers. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors that apply to the general population. The Tribunal is not satisfied, therefore, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).

26. While the representative suggested in her post-hearing submission that the applicant may be ‘absent any income or finances’,? the Tribunal is not satisfied that, in the event that the applicant were unable to pay the fine himself, he would not be able to get assistance from his family, noting that his father previously bought him a [store] (paragraph 18.g) and a taxi (paragraph 9).

27. 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 of support for the LTTE, or his membership of the particular social group of failed asylum seekers returning to Sri Lanka from a Western country. 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, that there is a real risk that he will suffer significant harm?

1. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The applicant’s representative has submitted that the applicant satisfies the Complementary Protection criterion because there are substantial grounds for believing that there is a real risk he will suffer significant harm if returned to Sri Lanka, namely being arbitrarily deprived of life; or being subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

2. The Tribunal has found above that it is not satisfied the applicant would suffer harm for reasons of his race or ethnicity, imputed political opinion or being a failed asylum seeker. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions that the applicant will be considered to have any LTTE connections or adverse political profile such that there is a real risk he will suffer significant harm upon his return to Sri Lanka or that there is a real risk that he will suffer significant harm on the basis that he is a Tamil who departed Sri Lanka illegally.

3. Nevertheless, the Tribunal has accepted that the applicant departed the country illegally, an offence under the Immigration and Emigration Act of Sri Lanka. The Tribunal, therefore, accepts that it is likely that the applicant would face questioning at the airport, arrest on charges of illegal departure, that 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 accepts that the applicant may spend up to a fortnight in jail on remand[11], in conditions that are cramped, uncomfortable and unsanitary.

   [11] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

4. However, the Tribunal does not accept that spending up to a fortnight in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia.

5. The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

6. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[12] The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

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

7. 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; during any period which he may spend in jail on remand; or upon return to his hometown, or indeed, elsewhere in Sri Lanka. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

8. Having considered these circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.

   CONCLUSIONS

9. 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).

10. 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).

11. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Mara Moustafine
    Member

    
    

    APPENDIX A: Relevant law

    66. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    67.      Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    68.      Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

    69.      If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    70.      In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

    APPENDIX B: MATERIALS BEFORE THE TRIBUNAL

    71.      The Tribunal has had regard to the following materials:

    ·     The applicant’s Protection visa application dated [in] November 2012 and accompanying papers, including the applicant’s statutory declaration dated 16 November  2012;

    ·     The applicant’s entry interview record dated [in] August 2012;

    ·     The recording of the applicant’s Department interview held [in] April 2013;

    ·     The submission from the applicant’s representative dated 17 April 2013;

    ·     The application for review and accompanying papers submitted on 3 September 2013, including a copy of the delegate’s decision record dated [in] August 2013;

    ·     Pre-hearing submissions from the applicant’s representatives submitted on 24 December 2014 and 7 July 2015;

    ·     The oral evidence of the applicant at the Tribunal hearing on 7July 2015 and country information submitted at the hearing;

    ·     A post-hearing submission from the applicant’s representatives submitted on 14 July 2015.