1313904 (Refugee) [2015] AATA 3336 (21 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1313904
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Stuart Webb
DATE:21 August 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
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Statement made on 21 August 2015 at 10:36am
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The applicant who claims to be a citizen of Sri Lanka applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] September 2013.
The applicant appeared before the Tribunal on 24 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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).
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…
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CaseChat Overview and Summary
The case involves a Sri Lankan citizen who has applied for refugee status in Australia. The applicant claims to be a Sinhalese Buddhist who fled Sri Lanka due to fear of persecution if he were to return. The case was heard by the Refugee Review Tribunal (RRT), which was required to determine whether the applicant was a refugee under the Refugees Convention and the Migration Act. The Tribunal had to consider the applicant's claims of past persecution and fear of future persecution, including the conditions in Sri Lankan prisons and the treatment of detainees.
The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution on the basis of his imputed political opinion and membership of a particular social group, and whether the harm he feared was systematic and discriminatory. The Tribunal also had to consider whether the applicant could avoid the harm by relocating within Sri Lanka and whether state protection was available to him.
The Tribunal found that the applicant's fear of persecution was well-founded, based on his past experience of torture and ill-treatment by the Sri Lankan authorities, his knowledge of corrupt practices during the civil war, and his status as a former police officer who had fled the country. The Tribunal noted that the conditions in Sri Lankan prisons were extremely poor, with overcrowding, unsanitary conditions, and a high risk of torture and ill-treatment. The Tribunal also found that the applicant's imputed political opinion and membership of a particular social group were significant reasons for the harm he feared, and that the harm was systematic and discriminatory.
The Tribunal concluded that the applicant met the criteria for refugee status under the Refugees Convention and the Migration Act, and remitted the matter for reconsideration with the direction that the applicant satisfied s.36(2)(a) of the Migration Act.
This case highlights the importance of considering country information and the conditions in the country of origin when assessing refugee claims. The Tribunal's decision also emphasises the need for a nuanced approach to claims based on imputed political opinion and membership of a particular social group, taking into account the applicant's past experience and background.
The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution on the basis of his imputed political opinion and membership of a particular social group, and whether the harm he feared was systematic and discriminatory. The Tribunal also had to consider whether the applicant could avoid the harm by relocating within Sri Lanka and whether state protection was available to him.
The Tribunal found that the applicant's fear of persecution was well-founded, based on his past experience of torture and ill-treatment by the Sri Lankan authorities, his knowledge of corrupt practices during the civil war, and his status as a former police officer who had fled the country. The Tribunal noted that the conditions in Sri Lankan prisons were extremely poor, with overcrowding, unsanitary conditions, and a high risk of torture and ill-treatment. The Tribunal also found that the applicant's imputed political opinion and membership of a particular social group were significant reasons for the harm he feared, and that the harm was systematic and discriminatory.
The Tribunal concluded that the applicant met the criteria for refugee status under the Refugees Convention and the Migration Act, and remitted the matter for reconsideration with the direction that the applicant satisfied s.36(2)(a) of the Migration Act.
This case highlights the importance of considering country information and the conditions in the country of origin when assessing refugee claims. The Tribunal's decision also emphasises the need for a nuanced approach to claims based on imputed political opinion and membership of a particular social group, taking into account the applicant's past experience and background.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant provided the following statement with his application.The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my present claims during my interview with the PV officer.I am a Sri Lankan citizen. I am an ethnic (Sri Lankan) Sinhalese and a Buddhist. I was born on [date], in [District 1], Sri Lanka. The country to which I fear returningI fear returning to Sri Lanka.Why I left Sri LankaOn the [date] I joined the Sri Lankan police as a police [officer] and was posted to [Division 2]. I continued to serve in [Division 2] until 2005.In 2004 I was assigned to the [Town 3] police station and as part of my duties was assigned the supervision of the mess. As the supervisor of the mess I was responsible for procuring provisions to serve 150 police personal. I purchased the vegetables from whole sale vendors at the [Town 4] junction near [Town 3].[Town 4 and Town 3] were under the control of the Sri Lankan government forces during the day but was frequently infiltrated by LTTE who had control of the surrounding areas (i.e. [locations])As a regular customer I became well acquainted with the vegetable traders who were ethnic Tamils. There were also wholesale suppliers of coconuts at the [Town 4] junction. These were ethnic Sinhalese from [District 1] which is my place of origin. Soon I built a good rapport with them as well. The coconut vendors asked me to introduce them to local people to whom they could sell the nuts wholesale and I introduced the vegetable vendors to the coconut vendors. In my dealings with the coconut vendors I discovered that Sri Lankan army personnel attached to the [Town 3] jetty camp were extorting 300 nuts out of approximately 3500 in each lorry load. I considered this to be very unjust because I am well acquainted with the struggles of the coconut estates in [District 1] and the wholesale vendors. Therefore I advised, the coconut vendors to resist the demands of the army personnel. As a consequence I became unpopular with the army personnel at the camp.Within approximately a week, I was summoned by the army when I went to [Town 4] junction. They took me to their van and asked me whether I could identify the individual inside. I identified the person inside the van as the wholesale vegetable vendor who was a Tamil. The Tamil personnel told me he was from the LTTE and that his telephone contained my mobile telephone. I told the army personnel that I knew the vendor well but was not aware of his connections to the LTTE if any. I requested the army personnel not to harm him. I proceeded to the Tamil man's father's vegetable kiosk which was situated further away. I informed the father about the son's arrest and asked him to rush to the brigade office situated at the paper corporation premises in [Town 3]. I did this as I was aware of the kind of treatment meted out by army personnel.At approximately 2pm that day the father came to the police station where I was working. He was weeping and stated that he had been chased away at the brigade office. I advised the father to lodge a complaint with the police. However the other police personnel on duty refused to record the complaint. As far as I know the Tamil vendor did not return home to this day.The following day I had loaded my vegetables in a three wheeler for transport to the camp and was travelling on my bicycle when I was intercepted by army personnel in a van. I was forcibly taken away in the van. Of the five men in the van only the driver was in army uniform while the rest of my abductors were in civilian clothing. I was taken to the [Town 3] jetty camp. Torture at the campAt army camp I was slapped several times and beaten with a plastic coated metal wire and also beaten on my back with a hammer. After approximately half an hour a senior ranking officer arrived at the camp. The individuals who were torturing me carried me with my chair into a bunker (i.e. the bunker was made of sand bags) behind the camp. While I was there in the bunker I pleaded with the solder inside of the bunker to escape. I told him I was a Sinhalese, a policeman and had nothing to do with the LTTE. I also told him about the incident related to the coconuts which had caused them to target me. The soldier was also from [District 1] and took pity on me. He told me he could not release me but that he would loosen the metal wire (which with my legs were tied to the chair) with which I had been tied to the chair and that he would move away for a few moments and would not intervene if I ran away during that time. I still carry the scars caused by the metal wire on my right ankle. I managed to run out of the bunker.I ran through the rear of the camp to [a road] and stopped a man on a bicycle and convinced him to give a ride. I was spotted by the sentry at the intersection of [a road and Town 3] road. An army officer followed me on a motorbike. I ordered the man on the bike not to stop. Thereafter another officer that was running behind on foot opened fire with his pistol. I sustained 6 gunshot wounds·my [fingers] on my left hand·one on my [arm]·on my [back] which lacerated my kidney·which penetrated [me] and went through my [thigh]·lower [thigh]·left [leg]The individual whose bicycle I was riding on received a shot on his chest which proved to be fatal.I ran into a temple and the caretaker and people from the neighbourhood took me to the [Town 3] hospital.The person that gave me a ride on the bike were transferred in an ambulance to [a] hospital where I was operated on. The other individual was transferred to [another] hospital and I heard that he had succumbed to his injuries.I was transferred to [a second] general hospital for a further surgical procedure and admitted to [a ward]. Three days later army personnel had visited the hospital inquiring about me. The doctor upon hearing me story advised me not to remain in that ward. He transferred me to [a third hospital] where I was treated for 17 days. I was taken back to the [second] hospital for a further surgical procedure but was returned immediately to the [third] hospital.When I was discharged from the hospital I went to my [sister’s home]. However I was told that the army and police personnel had visited my parents' home and searched the home and taken my brother [away] for questioning. My family advised me it was not safe for me to live with any of my relatives.I decided to go to [a] village in Ampara district to a former colleague's house. I had helped him previously when he was interdicted by the police department and therefore I felt confident he would help me.During the period 2005 — until 2008 I remained in [the] village in Ampara district at my former colleague's house along with my wife. After the birth of my [child], where was some disagreements between my wife and my friend's wife and as a consequence I moved to [Town 5] alone. I had met a bus driver from [Town 5] that frequently drove to Ampara and he invited me to go and stay in his village. I spelt in a shop that belonged to his son. I lived in [Town 5] for approximately 8 months and moved thereafter to [Town 6] due to my friendship with another bus driver [name]..During this period I was not able visit my parents or my wife and children because both houses were under surveillance by the army. In addition both my family and wife's family were subjected to harassment by the Sinhalese people of the area as LTTE supporters / sympathisers as a result of the frequent army visits.The situation got worse when my [brother] also was beginning to receive harassment. I feared for my life because at the time I had moved from [Town 6] to [village] to work in my [brother]’s shop.The people in the village began to act suspiciously and started asking me why I remained in the shop and why I could not find better work. I realised it was only a matter of time before the authorities were informed by them. After the civil war civilians were encouraged to inform authorities about persons they suspected of having supported the LTTE. I am also aware that many such persons have been targeted by the armed forces, some had been killed while some had gone missing.I feared for my life because of the injuries I carry on my body and also as I had come to the adverse attention of the Sri Lankan army and decided to flee Sri Lanka.I am well known to the Sri Lankan authorities, many of whom are my former colleagues who are with the police at the present time and would easily recognise me.As a former police officer, whose services have been terminated by the state as a result of continued absence I believe I will not receive sympathy or protection from the Sri Lanka authorities as I disappeared after having come to the adverse attention of the authorities.What I fear may happen to me if I return to that country and whyI believe that I am at risk of being seriously harmed by the Sri Lankan authorities for reasons explained above.The fact that I fled Sri Lanka illegally, claimed asylum in Australia more recently, have several visible scars on my body would only exacerbate the risk of being harmed.I have been targeted by the Sri Lankan authorities hence cannot expect protection from them.Why I think relocation to another area in my country is not a reasonable option.The whole of Sri Lanka is unsafe for me.
Decision
Reasons for decision
Official statistics reporting prison inmate figures vary. A Colombo Page article quoted the Commissioner General of Prisons report a total of 27,000 prisoners including remand prisoners in September 2013.[25] Whereas the Ministry of Rehabilitation and Prison Reform report the total prison inmate population as at 15 October 2013 was 22, 414.[26] This figure represents capacity of 190.6 percent according to the report.[27] Remand prisoners accounted for 49.3 percent of the prison population as at 15 October 2013.[28] A total of 13, 320 convicted were in community based correction between 1 January 2013 and 31 August 2013.[29] During that same period there were 64 deaths of prisoners and suspects in correctional facilities.[30][25] ‘Severe overcrowding in Sri Lanka’s prisons’, 2013, Colombo Page, 9 September < [26] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka < [27] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka < [28] International Centre for Prison Studies, n.d., World Prison Brief: Sri Lanka < [29] Ministry of Rehabilitation and Prison Reforms, Annual Performance 2013, 2013 < [30] Ministry of Rehabilitation and Prison Reforms, Annual Performance 2013, 2013 <>The current UK Operational Guidance Note on Sri Lanka states:3.16.10 Conclusion: Conditions in prisons and detention centres remain poor. Taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of ill treatment, including torture, are likely to reach the Article 3 threshold and a grant of humanitarian protection may be appropriate - see exclusion below.3.16.11 The Tribunal in GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) [section 2.4 – Caselaw], found that if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection, see paragraph 356 (4). For both men and women perceived to be connected to the LTTE or as advocates of Tamil separatism, there may be a heightened risk in prison of ill-treatment and caseworkers will need to consider whether a grant of asylum based upon imputed political opinion is appropriate.[31][31] UK Home Office: Operational Guidance Note Sri Lanka, July 2013. USDOS report that “isolated incidents of degrading treatment” including corporal punishment, maltreatment and abuse also occur.[32] A 2011 report published by Amnesty International states that “[s]ome detainees report being tortured and beaten by military personnel and paramilitary cadres working with government forces, such as the army and navy; by police, by inmates and by prison guards”. In addition, the report states that “[e]nforced disappearances continue to be reported and bodies of victims of extrajudicial killings often show evidence of torture”.[33] While no information was located specifying the exact frequency of such instances of maltreatment, media outlets report frequent instances of violence between inmates and prison guards.[34] [32] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1[33] Amnesty International 2011, Sri Lanka: Briefing to Committee Against Torture, ASA 37/016/2011, October , p.5 asa370162011en.pdf Accessed 23 March 2012[34] Haviland, C 2012, ‘Sri Lanka ‘must seek’ UN help over deadly prison violence’, BBC News bbc.co.uk/news/world-asia-19274037 Accessed 19 September 2012; UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, Section 11 /policyandlaw/coi/srilanka12/report-070312.pdf?view=Binary Accessed 9 May 2012According to USDOS, while authorities acknowledged poor prison conditions during 2011, lack of space and resources inhibited reform.[35] Conversely, according to the UK Home Office, President Rajapaksa has “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In addition, the government has also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[36] [35] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1[36] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March a,0.html Accessed 7 April 2011; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1The Tribunal has also considered country information drawn from research by the RRT’s former Country Advice Service which indicates that mistreatment, including torture, is sometimes carried out against inmates in prisons in Sri Lanka. French NGO Action des Chrétiens pour l’Abolition de la Torture (ACAT-France) reported in 2012 that “[i]n 2011 and 2012 Tamil Sri Lankans who had returned to their country, sometimes after having their requests for asylum dismissed, indicated that they had been tortured and subjected to ill-treatments upon their return to Sri Lanka in order to confess to presumed links with the Tamil Tigers”. The same report also noted that “[t]he phenomenon of torture … affects Sinhalese groups as much as Tamils”.[37] Similarly, the Danish Immigration Service cited comments made by a “leading human rights defender in Sri Lanka” in 2010 in which he stated that while torture is frequently practised in prisons, it is not targeted towards certain ethnicities, but rather “related to the conflict in general”.[38][37] ACAT–France & ALRC 2012, When arbitrariness prevails. A study of the Phenomenon of Torture in Sri Lanka, p. 16 [38] Danish Immigration Service 2010, Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration service’s fact-finding mission to Colombo, Sri Lanka, 19 June-3 July 2010, October, p.50The Tribunal finds that the country information set out above indicates that individuals who are held in prison in Sri Lanka for anything other than a very short period of time face a real chance of suffering cruel or inhuman and degrading treatment because of the extremely poor conditions of prisons in Sri Lanka. The Tribunal considers that the particular circumstances of the applicant raise the possibility of him being harmed while being detained. He is an ex-police officer, Sinhalese, and will be under investigation for his activities that led to his decision to depart from Sri Lanka illegally in 2012. The Tribunal considers that these investigations will take some time, given the time that has passed since the applicant has left, and information pertaining to what may have occurred in 2005 was obtained. The Tribunal considers that the applicant will be detained during this time while the information is sought and considered.The Tribunal considers that there is a real chance that the applicant will not be provided bail, while further investigations into his circumstances continue and that his detention pending the determination of his circumstances will be extended. The Tribunal has therefore considered that the prospect of the applicant being harmed by the Sri Lankan authorities during this extended detention. The Tribunal considers that in investigating authorities may well use intimidatory investigative techniques to get information from the applicant, as detailed in the reports cited above. The Tribunal considers the fact that the applicant had previously been a police officer would not lead to any softer approach by the interviewing authorities, but may well lead to an exacerbation of the treatment of the applicant in the circumstances. The Tribunal considers that the process of extracting information from the applicant may lead to him being harmed.The applicant’s experience in prison may also be affected by this knowledge that he was previously a police officer, leading to potential harm from prison guards and other prisoners while being detained.Given the applicant’s detailed physical and mental health conditions, the Tribunal considers that the applicant may well experience serious harm during his detention, either through harm from authorities during interviewing processes, or through mistreatment amounting to serious harm from prison guards or other prisoners held in the jail. Article 1A(2) of the Refugees Convention requires that a person’s fear of persecution be “well-founded”. The High Court in Chan Yee Kin v MIEA (1989) 169 CLR 379 held that the concept of “well-founded fear” requires an objective basis for the fear. There is a basis for the fear if there is a “real chance” of being persecuted. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility: a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. The Tribunal considers that the prospect of the applicant being harmed in prison cannot be said to be remote, but is a plausible outcome based on the particular set of circumstances of the applicant. The Tribunal considers that the applicant’s background as an ex-policeman, who raised issues of corruption in the SLA, escaped from the custody of the SLA, and ultimately fled the country due to fears of harm because of his previous experience, would be seriously harmed on return to Sri Lanka. The Tribunal considers that the applicant’s claims for protection are Convention based, a combination of the imputed political opinion against the SLA, and thus the authorities, and membership of a particular social group. His past actions could be seen to be breaching the unofficial policy, perhaps supported, or at least tolerated, of developing army run commercial enterprises against local operators, in particular Tamil operators. He has escaped from the authorities who were harming him. He is an ex-police officer, who has knowledge of the practices of the authority’s actions during the civil war. The Tribunal considers that the actions of the applicant could be imputed to be a political opinion. Further, the background of the applicant could be construed as a particular social group. The Tribunal is satisfied that the applicant will be persecuted for a Convention reason.Having considered the applicant’s claims cumulatively, the Tribunal finds that there is a real chance that is more than remote that should he return to Sri Lanka now or in the reasonably foreseeable future the applicant will encounter serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) of the Act. The Tribunal further finds that the essential and significant reasons for the harm would be the applicant’s imputed political opinion and membership of a particular social group as per s.91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c). The Tribunal must also consider whether the harm feared by the applicant is localised and whether he could relocate to another part of Sri Lanka to avoid it. As the harm feared by the applicant is at the hands of state actors, and will occur on his return to Sri Lanka, when he is in the custody of the authorities, the Tribunal finds that the harm feared is not localised and the applicant could therefore not avoid it by means of internal relocation. As the harm feared is at the hands of state actors, the Tribunal finds also that state protection is not available to the applicant.On the available evidence the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his imputed political opinion and membership of a particular social group should he return to Sri Lanka now or in the reasonably foreseeable future.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Stuart WebbMember
Ratio Decidendi
Legal Principle Established
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