1314179 (Refugee)

1314179 (Refugee) [2016] AATA 3291 (22 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1314179
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Sydelle Muling
DATE:22 January 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 January 2016 at 5:25pm

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, differently constituted, on 28 April 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. The representative attended the Tribunal hearing.
In finalising the decision the current Tribunal has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.422(3) of the Act.
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 the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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 claims to be a citizen of Sri Lanka who was born [in Sri Lanka] on [date]. According to his protection visa application he lived in [details of residence deleted]. He completed [number] years education and is fluent in Tamil. He described his occupation before coming to Australia as [occupation]. He worked as [occupation] in [Country 1] from February 2007 to 2010 and in Sri Lanka he was the co-owner of [a business] from 2004 to February 2007. The applicant departed Sri Lanka legally [in] February 2007. The applicant’s father, mother [and siblings] are residing in Sri Lanka.
The applicant presented his claims in his protection visa application [in]November 2012(folios 39 to 77 of the Department [File]), a Departmental interview he attended [in] May 2013 (folio 110 of [file]), submissions received by the Tribunal from the applicant’s adviser and at his Tribunal hearing on 28 April 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:
Background Information:
My name is [name] and I am a [age] year old male born in [Sri Lanka]. My ethnicity is Tamil and my religion is Hindu. I have never been married and have no children. My parents and siblings remain in Sri Lanka.
I fled Sri Lanka in 2007 and have never returned. I have been living in [Country 1] and [Country 2] ever since. In 2010 I tried to come to Australia by boat but failed. I was caught by the [Country 1] authorities and detained for up to [number] months. They threatened to deport me but I managed to get in contact with UNHCR. I was eventually issued with a registration certificate from UNHCR [in] June 2011.
Why I left my home country:
I fled my home country in 2007 because I feared for my life.
In 2004, two military personnel were found dead in front of my [business]. The Sri Lankan Army (SLA) then came and took me and my [Relative A] for interrogation. We were detained for approximately one week and tortured. During that week people for my village were fighting to get me out because I was underage and innocent. I was eventually released after one week of protests from my family and friends. Before they let me go they warned me saying if something like this is ever happened again I wouldn't be alive.
In 2005, I witnessed an army truck explode in front of my [business]. This was a big issue because an army [personnel] was a victim of the bombing. It was all over the papers. Within minutes, the entire area was packed with military personnel who began firing randomly in the air. They then began pulling local [business] owners out onto the street and started beating them with their batons and rifle butts. Fearing for my own safety, I fled the scene from the back door of my [business] and went to Colombo. Unfortunately, my [Relative A] wasn't so lucky. He was arrested and detained for approximately [number] months. During this time he was repeatedly beaten and tortured. Soon after his release, he fled to [another country] when he remains today.
Whilst I was in Colombo, the SLA destroyed my [business] and attended my home arresting both my parents. They took them to their camp and forced them to sign a document stating that I was an LTTE member. My parents however, refused to sign. Later that night they were released with the help of a lawyer and some village elders. Whilst all this was happening I was hiding at my [Relative B]'s house in Colombo. My parents told me that they attended our family home on numerous occasions threatening to kill them and me if I am ever found.
For the next 18 months I remained in hiding in Colombo. I couldn't return home because I would endanger myself and my family. I was unable to work and earn a living. It was an extremely stressful time for me. I had to rely on my [Relative B] for everything. My [business] was destroyed and I was left with nothing. I couldn't even relocate and start afresh somewhere new because I feared being recognized by the authorities. My parents told me that up until the time I fled Sri Lanka, the SLA and CID were constantly attended our house and inquiring about me. In or about February 2007, I eventually fled Sri Lanka and have never returned.
What I fear might happen if I go back to my home country:
I fear being killed if I go back to my home country.
Who I think will harm or mistreat me if I go back to my home country:
I think that the SLA and CID will harm and mistreat me if I return.
Why I believe they will harm or mistreat me if I go back:
I believe they will harm and mistreat me because I am a Tamil. They already blamed me for the death of the two army personnel in front of my [business] and tried to get my parents to sign a document stating I was an Tiger. They will continue to suspect me of being associated with the LTTE. I also believe they will harm and mistreat me because I have been living outside of Sri Lanka for a very long time in seek of asylum.
Why I believe the authorities in my home country will not protect me if I go back:
The authorities in my home country will not protect me if I return because I am a Tamil who has fled to a western country seeking asylum. I have been living outside my home country for a very long time. If I am forced to return, the authorities will definitely suspect me of being a former member of the LTTE and perhaps even accuse me of returning to help reform it.
Why I think I will suffer significant harm if I go back to my home country:
I think I will suffer significant harm if I return to Sri Lanka for three reasons: 1. Because I am a Tamil; and 2. Because I have been living outside my home country for a very long time; and 3. Because I have now claimed protection against my home country in a western country. For these reasons, I believe I will be arbitrarily deprived of my life and suffer cruel and inhumane treatment if I am forced to return.
Other matters that I would like the Department to take into account:
Wherever I go in Sri Lanka I will be easily recognised because of my appearance and native tongue. The authorities will easily identify me as a Tamil wherever I go. I will also be an easy target because people won't recognise me. The locals especially will see me as a foreigner and report me to the authorities. For these reasons, I cannot relocate in Sri Lanka.
The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts the applicant travelled to Australia by boat from [Country 2] without a travel document but provided several documents identifying his name and place of birth, including copies of his national identity card, passport, birth certificate and student identification. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.
At the hearing, the Tribunal expressed its concern regarding the credibility of the applicant’s claims based on a number of inconsistencies in his evidence in relation to quite significant facts, several implausibility’s in his evidence and the introduction of new claims during the hearing.
The Tribunal accepts that the applicant was the co-owner [of a business with Relative A]. The Tribunal notes in the hearing the applicant raised for the first time that [Relative A] was a fighter with the LTTE. While the applicant claimed in the hearing, when asked to explain why he had told no-one in the course of his protection visa application that his [Relative A] was a member of the LTTE, that no-one asked him and he was asked to provide information about his problems, the Tribunal does not accept that the applicant would have waited until this late stage in the process to raise what is a significant fact that is directly relevant to his own personal situation, even if he was not directly asked. The Tribunal also notes the applicant’s adviser’s submission made following the hearing that the applicant had instructed he was initially scared of disclosing his [Relative A]’s involvement with the LTTE because he believed it would result in him being treated prejudicially. The Tribunal notes the applicant made no mention of this being a reason for his delay in raising this claim when asked specifically why he had told no-one about this during the course of his protection visa application. The Tribunal has taken into consideration the fact the applicant has had the assistance of a lawyer throughout the process and does not accept that in these circumstances he would not have disclosed this significant information sometime prior to his review hearing. Further, the Tribunal has taken into consideration the somewhat limited evidence provided by the applicant regarding his [Relative A]’s alleged association with the LTTE. He did not know when his [Relative A] joined the LTTE or what rank he was despite allegedly being in a fighting unit. Given the applicant’s evidence regarding his [Relative A]’s alleged association with the LTTE and the lateness in which he raised this claim, in addition to other concerns the Tribunal has in relation to the applicant’s credibility generally, the Tribunal does not accept that the applicant’s [Relative A], and co-owner of the [business], was a member of the LTTE. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to bolster his case.
The applicant claimed that in 2004 two military personnel were found dead in front of his [business] and that he and his [Relative A] were taken for interrogation. While the Tribunal accepts as plausible that the bodies of two military personnel may have been discovered, according to the applicant in the hearing, some [metres] from his [business], the Tribunal does not accept that the applicant or his [Relative A] were taken into detention at the army camp and interrogated due to numerous inconsistencies and discrepancies in the applicant’s evidence as to how long he was allegedly detained for and what happened while he was in detention.
The Tribunal notes that in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that both he and his [Relative A] were detained for approximately one week and tortured and during that week people form his village fought to get him out because he was underage and innocent.

In the hearing the applicant claimed that when he went to open the [business] he saw the two army people were lying there dead. When asked what he did, the applicant stated that he did not know what to do. People from the [business] located in the area came over as well as the army and the army rounded everyone up. In response to the Tribunal’s question as to who was everyone, he stated they arrested the people running the [businesses]. When asked where his [Relative A] was, the applicant stated that he was not there at the time as he comes a bit late. He claimed that he and the other [business] keepers, about [number] people, were taken to [an] army point and they were all made to kneel on the ground and were all hit with the butt of a rifle in the back. When asked if he was questioned, he stated that they were talking in Sinhalese so he did not understand. The applicant’s evidence in the hearing was that he was detained overnight and the following day his mother, the priest and other elders rescued him saying there were no problems because of him and he was released in the morning. When asked if his [Relative A] was also detained, the applicant stated he came to the [business] late but was also arrested and kept in a different room to him at the same camp. When asked when his [Relative A] was released, the applicant stated that he was there later in the day.
However, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had claimed that after he opened the [business] and his [Relative A] had also arrived there, the army came and arrested both of them and took them to the camp where they were beaten. When asked if he was interrogated with his [Relative A], it is recorded that the applicant stated that he was made to sit together with his [Relative A] and they hit them with their shoes. The applicant stated that he was in the camp from the morning until about 3:00 or 4:00pm on the same day and that [Relative A] was released at the same time.
Given the inconsistencies in the applicant’s evidence as discussed above as to whether he was arrested by himself or with [Relative A], whether they were kept separately or together while they were in detention and whether they were detained for a few hours and released the same day as opposed to being detained overnight or for a period of one week, the Tribunal does not accept that the applicant or [Relative A] was rounded up and taken to the army point where they were detained, beaten or tortured and interrogated in relation to the death of two army personnel. As was put to the applicant in the hearing, he has provided varying evidence in relation to facts that are central to his claims and in light of the number of discrepancies in his account of this one particular significant event, the Tribunal does not accept that his claims are credible. As such, the Tribunal does not accept that following his release from detention, the army or the STF passed by the applicant’s [business] every day in the morning and threatened him saying “if there were any future problems you people will not be alive”.
The applicant claimed that the next incident occurred in 2005. He claimed that in 2005 he witnessed an army truck explode in front of his [business], killing [senior] [officers]. In the hearing, the applicant claimed that he was in his [business], at the counter at the time of the explosion and his [Relative A] was putting items on the shelves. When asked what he did after he saw the bomb explosion, the applicant stated that he went through the rear of the [business] and crossed over the fence and ran away. The applicant’s evidence in the hearing was that he did not have any contact with the army between witnessing the explosion and leaving the [business] through the rear and running away. The applicant claimed that he went to a friend’s place about 1.5 to 2 km from his [business] and stayed there until evening and the problems had subsided and then he went home. He claimed he stayed at his home that night but when he heard dogs barking he thought people were coming so he went to the back of their land and the next day he travelled to Colombo, where he stayed at his [Relative B]’s [house] for 8 or 9 months or thereabouts. The applicant claimed that his [Relative A] was arrested and “beaten very solidly”, although he did not see him, and detained for three to four months.
In contrast to the applicant’s evidence in the hearing regarding this particular incident, the Tribunal notes that according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had claimed that ten minutes after the explosion the army came and got hold of his [Relative A] and beat him and asked him for information. He claimed the army took [Relative A] and they also caught him but he managed to escape. The Tribunal notes according to the decision, when asked if the army was holding him before he escaped, the applicant said they tried to hold him but he ran away. The applicant also claimed, when asked where he went after he escaped from the army, that he sat down first and after that he went home. The Tribunal notes that there was no mention made that he had gone and stayed with a friend for some time, until problems subsided, before going to his home.
While the Tribunal accepts as plausible that the applicant may have witnessed an explosion in 2005 which resulted in the death of a number of [army officers], based on the inconsistencies in the applicant’s evidence regarding what transpired after this particular event, the Tribunal does not accept the applicant’s claim that the army subsequently began pulling [business] owners out on the street and beat them or that [Relative A] was arrested and detained but the applicant managed to escape are credible. The Tribunal notes in relation to his [Relative A]’s alleged detention, the applicant claimed in the hearing that his [Relative A] was held for [number] or [number] months, however in the submission from his adviser received on 12 December 2013, it was stated that the applicant’s [Relative A] was detained for [a greater number of] months. The Tribunal therefore does not accept the applicant’s [Relative A] was detained in 2005 following this incident.
The Tribunal therefore does not accept that the applicant’s [business] was destroyed the same night as the explosion. The Tribunal has also taken into consideration the applicant’s evidence in his protection visa application regarding his employment history, that he worked at [business] from 2004 to 2007. The Tribunal finds it implausible that if the applicant had run away to Colombo in the 6^th or 7^th month of 2005 when this incident occurred, as he claimed in the hearing, and his [business] had been destroyed around that time, that he would state that he was employed in that [business] for another year and a half after it allegedly no longer existed.
As the Tribunal does not accept that the applicant ran away from his [business] following the explosion in 2005, it follows that the Tribunal does not accept that the applicant went to Colombo and stayed with his [Relative B] for a period of time prior to departing the country. The Tribunal notes the applicant provided inconsistent evidence regarding the length of time he allegedly spent living in Colombo. According to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant had claimed in the entry interview that he was in Colombo for two months. In his statutory declaration attached to his protection visa application he claimed that he remained in hiding in Colombo for a period of 18 months. However in the hearing he claimed he was in Colombo for a period of 8 to 9 months or thereabout. As the Tribunal does not accept that the applicant went to Colombo and stayed with his [Relative B], it does not accept that he was unable to work and earn a living while he was allegedly there.
Nor does the Tribunal accept that the applicant’s parents received any visits from the army enquiring about the applicant or that the army threatened to kill his parents and him or that his parents were required to report to the army camp or that they were ever arrested and detained. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that whilst he was in Colombo the army attended his home arresting both his parents. He claimed they were taken to the camp and forced a to sign a document stating that he was an LTTE member however his parents refused to sign. He also claimed that his parents were released with the help of a lawyer and some village elders However, in the hearing the applicant claimed that after he left, the army came and enquired with his mother and father about his whereabouts and asked them to bring him. He stated that the army came again after one week. When asked if the army ever came and took his parents away, he stated they only took his father to the camp and said if his son comes he has to bring him over. The Tribunal notes the applicant made no mention in the hearing about his father or his parents being asked to sign something until this was specifically put to him as a discrepancy in his evidence. Given the significant discrepancies in the applicant’s evidence regarding the alleged treatment of his parents following his alleged departure to Colombo, the Tribunal is further satisfied that the applicant’s claims are not credible. It therefore follows that the Tribunal does not accept that the applicant’s father was assaulted when the army came to their home or that that army, as stated in the delegate’s decision, or the CID were constantly attending his house and inquiring about him as he claimed in his statutory declaration attached to his protection visa application.
As the Tribunal does not accept that the applicant was of any interest to the authorities, including the army or the CID, in Sri Lanka as a result of either of the incidents that occurred in 2004 and 2005, the Tribunal does not accept that the applicant made any arrangements with an agent to go through a particular counter at the airport because he had a problem and had to leave the country. The Tribunal finds on the evidence before it that the applicant obtained a passport through normal channels in 2004 and while he may have had the assistance of an agent in securing a visa to travel to [Country 1], the Tribunal does not accept that the applicant required any help to pass through the airport as he claimed.
The Tribunal has taken into consideration the applicant’s evidence in the hearing that he was hit in the head and has a [health] problem so he is unable to recollect. When asked who hit him in the head and when, the applicant stated that he was hit all over the place by the army. The applicant claimed that he had been beaten up quite intensely and did not remember until now but after being questioned it was all coming back to him. As was put to the applicant in the hearing, the Tribunal has difficulty accepting that he would only remember well into his review hearing that he had been beaten intensely and not during any of the previous interviews he had or discussions with his lawyers. Given the Tribunal’s concern regarding the applicant’s credibility generally and his delay in raising this claim regarding the hit to his head, it does not accept that the applicant has any problems recollecting as a result of any beatings he received from the army to his head.
In relation to his [health] problem, the Tribunal notes that following the hearing it received a letter from [a doctor] dated [May] 2015 in which it was stated that the applicant is suffering from poorly controlled [medical condition] and is suffering from depression and anxiety related to emotional trauma and physical violence he had been subjected to in Sri Lanka and has exhibited suicidal ideation in the past. The Tribunal notes that there is nothing in this document to indicate when the applicant first consulted [the doctor] or how many times the applicant has seen the doctor, when the applicant was diagnosed with anxiety and depression or what basis this diagnosis was made or when in the past the applicant exhibited suicidal ideation. Further, in relation to the applicant’s [medical condition], there is no information provided by [the doctor] to indicate when the applicant was diagnosed with this condition, why the applicant’s [medical condition] is “currently not controlled well” despite being under regular review or on what basis the doctor worries that the applicant’s [medical condition] would deteriorate further if he was returned to Sri Lanka. While it was submitted by the applicant’s adviser that this would impeded the applicant’s ability to concentrate during long hearings, the Tribunal is not satisfied on the somewhat limited medical evidence before it, which post-dates the hearing, that the applicant’s evidence was affected by his medical condition. Nor does the Tribunal accept the applicant’s adviser’s contention that the doctor’s statement in his letter that the applicant suffers from depression and anxiety as a result of past trauma experienced, is evidence that the applicant has been subjected to trauma in the past or that it substantiates the applicant’s claims regarding his past experiences as submitted given that the doctor’s opinion is based on the applicant’s own self reporting. The Tribunal also does not accept on the limited medical evidence provided in the letter from the applicant’s doctor that the applicant’s depression and anxiety makes it difficult for him to recount precise details of his past, as submitted by the applicant’s adviser.
The Tribunal has also taken into consideration the applicant’s evidence that a lot of time has passed since these events took place and he has forgotten many things, however the Tribunal does not accept that this adequately explains the numerous discrepancies in the applicant’s evidence. While the Tribunal accepts these events happened a number of years ago and that this may, in some circumstances, make recalling aspects of what occurred challenging, the Tribunal has had regard to the significance of these events to the applicant’s claim for protection. Although a passage of time may explain a few trivial inconsistencies and discrepancies, the Tribunal finds that the number of differences in the applicant’s evidence, sometimes of quite significance, undermines the credibility of the applicant’s claims.
The Tribunal has had regard to applicant’s adviser’s submissions regarding a number of factors which should be taken into consideration in assessing the Tribunal’s credibility concerns including the applicant’s lack of familiarity with the formal interview process, the fact he comes from a country where he had a fear of the authorities therefore it is plausible he would have a lack of trust in authorities generally, making it difficult for him to speak openly to them in Australia and the fact the applicant has been required to speak through an interpreter through the process. The Tribunal does not accept, even cumulatively, that the factors raised by the applicant’s adviser adequately explains the numerous significant discrepancies in the applicant’s account of his personal experiences, as discussed above, or dispels the Tribunal’s concerns regarding the credibility of his claims.
The Tribunal has also taken into consideration the letters [a], Member of Parliament, [district] dated [May] 2013 and [a] Parish Priest of [a] [Church] dated [June] 2013 which both refer to the [attack] that took place in 2005 outside the applicant’s [business] and state that the applicant’s [business] was burnt and the applicant was being sought. Given the Tribunal’s concern regarding the credibility of the applicant’s claims, for the reasons discussed above, the Tribunal places little weight on them.
Based on the above, the Tribunal does not accept that the applicant was of any interest to the authorities in the past, either in relation to the incident in 2004 when two army personnel were found dead near to his [business] or the bomb explosion in 2005 which resulted in the death of a number of [army officers]. The Tribunal does not accept that the applicant’s [business] was destroyed, that his [Relative A] was arrested and detained or that the applicant fled to Colombo and hid there until he departed the country in February 2007. Nor does it accept that the applicant’s parents received any visits from the authorities making enquiries about his whereabouts, that threats were made to kill his parents and him, that either of his parents were arrested and detained or that they were made to sign a document stating that he was a member of the LTTE. As such, the Tribunal does not accept that on the applicant’s return to Sri Lanka, he would face a real chance of persecution, now or in the reasonably foreseeable future, from the army, the CID, the police or anyone else because they believe he was responsible for these incidents or because they suspect him of being associated with the LTTE.
The Tribunal notes that in the record of the applicant’s entry interview it states that the applicant claimed that because his father was in [Country 3] the paramilitary forces in Sri Lanka gave him trouble and asked him for money. This was not repeated in the statutory declaration attached to the applicant’s protection visa application, outlining his claims for protection, or in his evidence to the Department or the Tribunal, including submissions from his adviser. The Tribunal notes the applicant was asked about his father in the hearing and he stated that his father had worked as a [occupation] from 1990 to 2001 and that he had returned to [Sri Lanka]. The applicant made no mention in the hearing of experiencing any trouble in the past from paramilitary forces because of his father’s residence in [Country 3] or that he had any fear of being harmed by paramilitary forces or anyone else because of his father’s past residence in [Country 3] over some fifteen years ago. For these reasons, the Tribunal does not accept the applicant faces a real chance of harm from the paramilitary, now or in the reasonably foreseeable future, for reasons of his father’s past residence in [Country 3].
The Tribunal notes the applicant claimed in his statutory declaration that he believes he will be harmed and mistreated by the authorities because he is Tamil. It was noted in the hearing that in written submissions made by the applicant’s adviser it had stated that the applicant had been humiliated and unable to live freely because of his Tamil race and the Tribunal asked the applicant how he had been humiliated and unable to live freely because of his race. The applicant stated that he is a Tamil Hindu and they will identify him as a Tamil person anywhere is Sri Lanka. When the Tribunal repeated the question, the applicant stated that he was beaten up, his father was taken to the camp and his house was being monitored. For the reasons discussed above, the Tribunal does not accept the applicant was beaten, his father was taken to the camp or that he or his house were monitored by the authorities.
The Tribunal has also taken into consideration country information from a range of independent sources about the current situation in Sri Lanka, which was put to the applicant in the hearing, including DFAT Country Information Report for Sri Lanka dated 16 February 2015 (and the more recent DFAT report dated 18 December 2015 which provides consistent information to the earlier report) and UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka from 2012. The information suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009 and that systematic discrimination against and persecution of Tamils for reason of their ethnicity does not occur in Sri Lanka now. In the 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, the UNHCR indicates that not all Tamils from northern and eastern Sri Lankan are vulnerable to harm due to imputed links with the Liberation Tigers of Tamil Eelam (LTTE) but that people with “more elaborate links to the LTTE” may require protection. As was noted in the delegates’ decision, a copy of which was provided to the Tribunal, the guidelines state the fact a person originates from an area that was previously under LTTE control does not necessarily result in them being owed international refugee protection. While the applicant is from the north of the country, he has not claimed to have had any connection or affiliation with the LTTE. The Tribunal does not accept that his [relative] and business partner [Relative A] was an LTTE member or that his parents were required to sign a document stating that he was an LTTE member therefore the Tribunal does not accept the applicant was ever suspected of any involvement with the LTTE in the past. As such, the Tribunal does not accept that the applicant falls within the profile of those Tamils who would be at risk of serious harm.

The Tribunal finds that the country information before it, including information provided by the applicant’s adviser, does not suggest that all Tamils, including Tamils from the north, face a real chance of suffering serious harm solely on account of their Tamil ethnicity. Based on the applicant’s past experiences in Sri Lanka, his individual circumstances and the country information put to the applicant, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his Tamil ethnicity including being perceived as a supporter of the LTTE based on his Tamil race or his membership of a particular social group of “young Tamil males”, “young Tamil males from the North”, “Tamil males originating from the Northern Province of Sri Lanka” or “young Tamil male from the north of Sri Lanka who has travelled to Australia” .
The Tribunal has also had regard to the applicant’s evidence in the hearing in relation to the assistance he received while he was in [Country 1], after he was released from detention in 2010 with the help of UNHCR, from a Hindu cultural association. The applicant claimed that the Hindu association was supporting the LTTE and the association provided him and the others who had tried to go to Australia by boat and were caught, with meals and looked after them so he will be suspected as an LTTE supporter. When asked how this association was supporting the LTTE, the applicant stated that they were sending money during the war and after the war they helped some widows in [Country 1] and also the disabled. The Tribunal does not accept on the applicant’s somewhat limited evidence about this Hindu association and its earlier credibility findings, that this organisation was supporting the LTTE or that they are suspected of supporting the LTTE.
Further, the Tribunal has taken into consideration the information that was put to the applicant from the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) decision, GJ v. Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) which provides that the current categories of persons at risk of persecution or serious harm on return to Sri Lanka are individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. Having regard to the applicant’s profile and experiences in Sri Lanka, the Tribunal does not accept that the applicant’s limited association with this organisation based in [Country 1] through their provision of practical assistance to him will result in him being perceived as a present risk to the Sri Lankan state or government or falling within the category of persons who are at risk of serious harm.
Considering all the evidence, the Tribunal finds that there is nothing to suggest, including the assistance he received in [Country 1] from a Hindu association, that the applicant would be imputed of supporting the LTTE to in the future or be accused of returning to Sri Lanka to help reform the LTTE. The Tribunal does not accept on the country information before it and its findings that the applicant has not experienced any problems in the past because of his Tamil ethnicity or any perceived association with the LTTE, that the applicant would face a real chance of serious harm, including being unable to live freely, if he returns to Sri Lanka because of his Tamil ethnicity, his membership of a particular social group of “young Tamil males”, “young Tamil males from the North”, “Tamil males originating from the Northern Province of Sri Lanka” or “young Tamil male from the north of Sri Lanka who has travelled to Australia” or because he will be imputed with an anti-government profile as a result of his Tamil ethnicity or his membership of these particular social groups. Nor does the Tribunal accept the applicant’s claim at the conclusion of the hearing that people will “dob” him in or identify him to the authorities as being LTTE in order to collect money or to prevent them from being harmed. The Tribunal finds this claim to be purely speculative.
The applicant has also claimed that as a Tamil who has lived outside his home country for a very long time and fled to a western country seeking asylum that he will face persecution. The Tribunal does not accept on the evidence before it that the applicant will be suspected of being a former LTTE member or be accused of returning to help reform the LTTE simply because he has been away from the country since 2007. The Tribunal has had regard to the information cited in the delegate’s decision, a copy of which was provided to the Tribunal, suggesting that there are over 140,000 Sri Lanka asylum seekers and refugees in a number of countries around the world and increasing numbers have been returning to Sri Lanka, both voluntarily and involuntarily as failed asylum seekers, including those who have been absent from the country for many years and the information does not suggest mistreatment of returnees for this reason.
[Information deleted].
As was put to the applicant in the hearing, the country information, including information from DFAT, suggests that returned asylum seekers are usually kept at the airport for some hours as permitted by law which allows them to be held for up to 24 hours, while investigations are made into their identity which may include checks with local police or other authorities in the person’s home area and there is no further interest of persons without any adverse profile. Although the Tribunal notes that there are some reports, as cited in the submission from the applicant’s adviser, by human rights organisations such as Amnesty and Human Rights Watch, suggesting some examples of serious harm to returnees, these appear to be isolated examples where individuals have had particular adverse profiles. The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities, even taking into consideration his prolonged absence from the country.
While the Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and claimed to have never been involved with the LTTE or assisted them in any way and the findings above that he had never been suspected of having any involvement with the LTTE, and also the fact the applicant departed Sri Lanka legally and had renewed his passport while he was in [Country 1], the Tribunal does not accept that his long absence from the country would result in any adverse attention. Similarly, while the Tribunal accepts that the country information indicates that in some cases people who have returned from overseas after seeking asylum may be monitored after they have returned to their home area, as the Tribunal put to the applicant in the hearing, the information does not indicate that people who did not have previous problems would come to harm because of that monitoring just because they sought asylum. The Tribunal finds on the information before it that the applicant would be released without further interest and he would not face a real chance of persecution as a Tamil, a failed asylum seeker/ Tamil failed asylum seeker or returnee/Tamil returnee.
Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who was of no interest to the authorities and was not suspected of having links with the LTTE prior to his departure from the country, the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, a failed asylum seeker or a Tamil failed asylum seeker or a returnee or Tamil returnee or as a person who fled to a western country seeking asylum or as a young Tamil male from the north of Sri Lanka who has travelled to Australia or for any anti-government imputed political opinion as a result of seeking asylum in the West.
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the army, the CID, any other authorities or anyone else because of his Tamil ethnicity or because of his membership of the particular social groups of “young Tamil males”, “young Tamil males from the North”, “Tamil males originating from the Northern Province of Sri Lanka” or “young Tamil male from the north of Sri Lanka who has travelled to Australia” or because he was allegedly involved in events in which army officers were killed and which he was believed to be involved in or because of an imputed political opinion of supporting the LTTE based on his [Relative A]’s alleged affiliation with the LTTE or because he fled the country, as many others did, prior to the end of the war. Nor does the Tribunal accept the applicant faces a real chance of persecution because he has been abroad for a long period of time or because of his contact with members of the Tamil diaspora while in [Country 1] or because he fled to a western country seeking asylum or because of his membership of the particular social groups of “failed asylum seekers returning to Sri Lanka” or “failed Tamil asylum seekers” or” young Tamil male from the north of Sri Lanka who has travelled to Australia” “. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
Complementary protection obligations
On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).
As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 that he will suffer significant harm as defined in subsection 36(2A) of the Act.
Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept that the applicant was of any interest to the authorities following incidents that occurred in 2004 and 2005 when army personnel were killed. The Tribunal does not accept that the applicant’s [business] was destroyed, his [Relative A] was arrested and detained or that the applicant fled to Colombo and since that time enquiries were made from his parents about his whereabouts. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the army, CID or the authorities because he was suspected to have some involvement with these particular incidents.
In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity or his membership of a particular social group of young Tamil males from the north or any combination of these factors. The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within. The Tribunal finds that the neither the applicant or his family, including his [Relative A], had any links to the LTTE and it has found that he has not been suspected of having any links. The Tribunal does not accept that the applicant’s departure from Sri Lanka prior to the conclusion of the war or the fact he has been abroad for some time or was in contact with a Hindu organisation in [Country 1] who provided him with practical support, in combination with him being a Tamil male from the North, would lead to the applicant facing a real risk of significant harm from the authorities in Sri Lanka as an imputed LTTE affiliate.
The Tribunal is also not satisfied on the country information that there is a real risk the applicant would face significant harm on arrival in Sri Lanka or after his release into the community as a person who has failed to obtain protection in Australia or has lived abroad for a long period of time. As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker or Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. It also accepts as possible that he may face further questioning and/or monitoring after being released into the community. However, the Tribunal does not accept that the process of questioning or any surveillance of the applicant amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning or monitoring to which he may be subject to.
Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sydelle Muling
Member

[2016] AATA 3291

22 January 2016

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Immigration

Administrative Law

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