1314487 (Refugee)

[2015] AATA 3326

1314487 (Refugee) [2015] AATA 3326 (11 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1314487

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Shahyar Roushan

DATE:11 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 11 August 2015 at 1:42pm

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 (protection) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [age] years old. He is a national of Sri Lanka and of Tamil ethnicity. He arrived in Australia by boat [in] July 2012. He applied for the visa [in] December 2012.

3. The applicant essentially claims that between 2007 and 2009 he carried out labour work for the LTTE at the request of his employer, who was in turn pressured by the LTTE to carry out the work. The applicant used his company’s machinery to [conduct specific work] around public buildings. He also cleared up the areas where the Sri Lankan Army (SLA) had attacked the LTTE during the war. After the war the applicant was detained, questioned and mistreated on three separate occasions. He fears facing serious harm for the reason of his Tamil ethnicity and imputed political opinion as member or support of the LTTE.

4. The issues in this case are whether the applicant has a well-founded fear of persecution 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 him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Delegate 

   Application for a Protection visa

5. In a statutory declaration (the statement) attached to his application for a protection visa the applicant made the following claims.

6. As a Tamil, he has experienced persecution all his life for the reason of his ethnicity and political opinion. Tamils are ‘wrongfully’ accused of being members of the LTTE. He has been displaced repeatedly due to war forcing him and his family to live in camps. The Sinhalese population of Sri Lanka ‘harms’ Tamils and subjects them to discrimination on a daily basis.

7. [For several years] the applicant was working for a company called [business name] in [his town]. The company was owned by a Tamil man called [name]. He worked as a [occupation], responsible for [specific tasks]. In 2007 the LTTE demanded [that the owner] provide support to them in the form of labour. The applicant and two other workers were forced to provide labour to the LTTE. They had to use the company's machines and [conduct specific work] around the public buildings such as schools and hospitals. He did not want to do this as he did not support the LTTE. He feared that if he refused he would have been forced to fight with the LTTE like other Tamils in his area. He carried out this work for the LTTE ‘on and off’ from 2007 until 2008, once or twice a month usually. From [2008] to early 2009 he was forced to work with the LTTE for three months cleaning up the areas where the army had attacked. He also had to [conduct specific work].

8. After the SLA defeated the LTTE, the applicant, his family and many other Tamil families, lived in a refugee camp that was controlled by the SLA. The SLA began detaining LTTE members. Their usual process was to interrogate LTTE members and ask them to identify anyone else who had been involved in the LTTE. Some of the LTTE members identified him as being someone who assisted the LTTE. In March 2009 (about a week after arriving in the army camp) he was called by the SLA and the CID for interrogation. They were very aggressive with him and asked him what his involvement was with the LTTE. He told them everything he knew and all what he had done. They accused him of [conducting specific work] and hiding weapons. He told them he did not know anything about the weapons or where they might be hid. He was detained for five days in a room. He was beaten on a daily basis and he was accused of being an LTTE supporter. Eventually after five to six days he was released. He does not know why they released him. He returned to the camp to be with his wife and children. He remained there for about three days until the Karuna Group, EPDP and the CID came to the camp. They had moved into the camp recently and joined forces. They called his name and wanted to interview him. Many others were also called. He went as ordered and he was detained for another seven days. He was severely beaten and interrogated about his knowledge of the LTTE weapons. He told them the same things he had told the officers at the previous interrogation. Upon his release the officers told him that they would call him back again for further interviews. In the days that followed they kept telling him that he should speak with his family and make a decision to tell them where the weapons were. He feared for his life after the beatings they had subjected him to and so he fled the camp with a large group of Tamils.

9. The applicant moved to [City 1] and set-up a new life with his family. He was living in fear that he would be brought to the attention of the authorities after fleeing the camp and again accused of having knowledge of the LTTE weapons. In or around March 2012 (not January or February as previously advised) the [specific group] CID came to his home and ordered him to report to the nearby office of [that group]. The next day he reported to their office with his wife.

10. The applicant was interrogated again over the same matters. They asked him about his involvement with the LTTE and the weapons that the LTTE had hidden. He was released on the same day and returned home. His neighbours were also interviewed by the same authorities about him. The neighbours also told him that there had been a white van looking for him. He was feeling increasingly fearful as it appeared the authorities were again interested in him and his involvement with the LTTE. About twenty days later his wife called him while he was at work and told him the authorities had called their family home asking him to report to the headquarters. He feared for his safety and he fled to Jaffna. He feared that if he remained and presented himself to the authorities they would arrest him. He went to his uncle's home in [Town 2] and he made arrangements to flee Sri Lanka.

11. Since leaving Sri Lanka his wife has told him the authorities have contacted her on three or four occasions searching for him. The last time was approximately in November 2012.

12. He believes if he returns to Sri Lanka he will be detained and killed by the Sri Lankan authorities. He believes they will target him because he worked for the LTTE. He will be arrested on the basis of his imputed political opinion and will be wrongfully accused of being a member of the LTTE.

13. He has tried to move previously to avoid being seriously harmed by the authorities. This did not work, he was identified and he was interrogated again. Furthermore as a Tamil in Sri Lanka he is limited to the places he can live because of his ethnicity. The Singhalese will harm him if he attempt to relocate to their area. He fears persecution in all parts of Sri Lanka for the reasons provided.

14. In support of his application for a protection visa, the applicant submitted the following documents:

    ·Copy of ‘Application for release of an elder/s, member/s of family from IDPP centre acknowledgment’, dated March 2009, addressed to Ms [A], acknowledging receipt of her application for the release of the applicant, his wife and their two children.   The document states that the application will be forwarded to the Security Forces Commander who would make a decision in relation to the application.

    ·A letter from [a] Manager at [an NGO], dated [in] January 2006, stating that the applicant was an employee of [theirs] from [November] 2004 to [January] 2006. [This agency] is a NGO responsible for [reconstruction activities].

    ·Copy of the applicant’s Driving License.

    ·Copy of a letter of reference from [a second reconstruction agency], dated [in] March 2010, stating that the applicant has been working for [them] since October 2009 as a [occupation] and has received mechanical training on a regular basis.

    ·A number of untranslated documents, including a document that appears to be the applicant’s marriage certificate.

    ·Copy of a Vulnerable Group Feeding – Household Food Ration card, dated [in] November 2011.

    ·Undated copy of a Relief and Recovery Assistance to Displaced Persons (Relief Assistance Card)

    The Entry Interview

15. Following his arrival by boat, the applicant was interviewed (entry interview) by the department [in] September 2012. The information the applicant provided in connection with the interview is contained in a form (the entry form) signed by the applicant. The interview was conducted with the assistance of an interpreter.

    Protection Visa Interview

16. The applicant was interviewed by a delegate of the Minister [in] July 2013. Where relevant the applicant’s oral evidence to the delegate is discussed below.

    The Delegate’s Decision

17. The delegate refused the visa [in] September 2013. The delegate did not find the applicant’s claims to be credible and did not accept that the applicant was detained, beaten and interrogated by the authorities and paramilitary groups in the camp or that he escaped from the camp. Nor did he accept that the authorities had an adverse interest in him. The delegate was not satisfied that there is a real chance of the applicant being persecuted for a Convention reason. The delegate found that there is no real risk that the applicant would suffer significant harm if removed to Sri Lanka.

    Application for Review

18. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

    Pre-Hearing Submissions

19. The applicant’s former representatives provided the Tribunal with a submission dated 28 March 2014 in relation to the facts of the case and the applicable law (see folios of the Tribunal file). The submission provided a summary of the applicant’s claims and comments on the delegate’s findings. It contended that the applicant will face harm because of his Tamil race; his imputed political opinion and his membership of ‘a particular social group, namely as a failed asylum seeker from a western Country’.

20. The submission referred to various reports from a number of sources including, a September 2012 research response from Immigration and Refugee Board of Canada (IRBC) in relation to the treatment of suspected LTTE supporters; a February 2013 research response from the IRBC in relation to the treatment of failed asylum seekers and individuals being picked up by white vans at checkpoints in North and East of the country; the 2012 UNHCR Eligibility Guidelines; a March 2011 UK Home Office Operational Guidance Note in relation to Sri Lanka; a 2009 UNHCR report; a February 2012 Human Rights Watch (HRW) report in relation to the treatment of Tamil deportees from the UK;  a January 2012 HRW report in relation repression of ‘media, civil society, minorities’; HRW’s 2014 World Report in relation to Sri Lanka; the US Department of State’s  Country Reports on Human Rights Practices for 2012; a 2013 Amnesty International statement to the UN Human Rights Council; an August 2013 Amnesty International report on human rights violations in Sri Lanka; Amnesty International’s 2013 World Report in relation to Sri Lanka; a  2011 Minority Rights Group International report on minority rights in Sri Lanka; a March 2012 report by the International Crisis Group on the high military presence in Sri Lanka’s north and various news reports on the treatment of Tamils, dating back to 2012 and 2013, sourced from Time Magazine World, Tamil Guardian, Integrated Regional Information Networks and Guardian Online.

21. It was submitted that as a young Tamil male from the east, who has successfully escaped from Sri Lanka, the applicant believes that he will be imputed with pro-LTTE sentiment. In Sri Lanka Tamils and the LTTE are regarded as synonymous with each other. It was submitted that those with perceived links to the LTTE, which go beyond mere residency within an area previously controlled by the LTTE, may be exposed to harm. In the applicant’s circumstances, he has been detained and interrogated on a regular basis, the authorities have all his details and he has been questioned about his LTTE involvement. The applicant would be in a position where he would be identified and regarded as a ‘dissident’ upon his return to Sri Lanka.

22. It was submitted Tamils continue to experience many issues, including mistreatment and discrimination, because of their race. There is lack of freedom of speech and deep ethnic tensions prohibit a meaningful reconciliation. The Sri Lankan government is undergoing a process of Sinhalisation with an increasing presence of Sinhalese people in the north. It was submitted that those who had been detained by the government and subsequently released continue to face threats and intimidation. It was further submitted that returnees from western countries and failed asylum seekers have been targeted upon their return to Sri Lanka, resulting in many countries halting deportations. It was submitted that the applicant is likely to face torture and cruel, inhuman and degrading treatment upon returning to Sri Lanka.

23. On 5 September 2014, the applicant appointed a new representative.

24. On 15 January 2015, the applicant’s representative made a written submission to the Tribunal in relation to the fact of the case and the applicable law. The submission included extracts from Amnesty International’s 2012 Annual Report in relation to Sri Lanka; the US Department of State’s Country Reports on Human Rights Practices for 2012 and 2013; Department of Foreign Affairs and Trade (DFAT) reports dating back to February and March 2013; a February 2013 research response from IRBC in relation to Tamil returnees and failed asylum seekers; a December 2011 report by the UN Committee against Torture and a number of news articles (the reports were attached to the submission as annexures).

25. It was submitted that the applicant will be detained under the Immigrants and Emigrants Act (I&E Act) of Sri Lanka if he were forcibly returned to Sri Lanka for illegally departing Sri Lanka and seeking asylum in Australia. The object of the Act is not to protect and promote the general welfare of the State and its citizens; and therefore its enforcement is not appropriate and adapted to achieving a legitimate national objective. The punishment the applicant will be subjected to is excessive. The applicant fears being charged and imprisoned for long periods of time or that he will be in remand longer than most returnees due to his alleged connections to the LTTE and having applied for asylum in Australia. The submission referred to remarks made by the former Defence Secretary to the effect that LTTE cadres who managed to flee Sri Lanka during the Humanitarian Operation are encouraging Tamils to regroup militarily. 

26. The applicant’s representative forwarded a letter authored by [a Member of Parliament], dated [in] December 2014, in support of the applicant. In his letter [the author] stated that the applicant and his family are well-known to him. He stated that before 2009, the applicant was working as a [occupation] ‘at one of the LTTE’s structures’. At the end of the war he moved to a government controlled area in [City 1]. While the applicant was staying there, ‘he was tortured by the Sri Lankan forces under the name of inquiry’. He was often called for inquiries but towards the end he did not attend due to his fear of being tortured. The applicant ‘led a hidden life’ in order to avoid being arrested and as ‘the threats were increasing’, he moved out of the country to protect himself. After his departure, the Sri Lankan CID personnel often visited his house and threatened his wife. Recently, they went to his house, searching the premises. They confiscated the applicant’s passport. The authorities are continuing their search for the applicant.

27. The applicant’s representative also forwarded a copy and translation of a document, purportedly issued by the Sri Lanka Police, requesting the applicant to report to the ‘Criminal Unit of Police Station in Negombo [in] April 2012.

    The Hearing

28. The applicant appeared before the Tribunal on 29 January 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.

    Notice under s.424A of the Act

29. On 30 January 2015 the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting him to comment on/respond to information that the Tribunal considered would, subject to any comments/response he made, be the reason, or a part of the reason, for affirming the decision under review.

30. On 9 February 2015, the applicant’s representative responded to the Tribunal’s s.424A letter. Attached to the response was a report by the Edmund Rice Centre, dated 21 August 2014, in relation to failed Sri Lankan asylum seekers.

    The Relevant Law

31. 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.

32. 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).

33. 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.

34. 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’).

1. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to DFAT’s Country Information Report – Sri Lanka (3 October 2014); Country Information Report – Sri Lanka (16 February 2015) and Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014).

   Analysis, Reasons and Findings

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   LTTE and Political Opinion

3. The Tribunal accepts that between 2007 and 2009 the applicant carried out labour work for the LTTE at the request of his employer, who was in turn pressured by the LTTE to carry out the work. The applicant used his company’s machinery to [conduct specific work] around public buildings. From November 2008 to early 2009, he also cleared up the areas where the SLA had attacked the LTTE during the war.

4. The Tribunal further accepts that after the LTTE was defeated, the applicant and his family lived in a refugee camp controlled by the SLA. The Tribunal accepts that in the camp he was falsely identified by LTTE members as a person who had assisted the LTTE. Consequently, he was called by the SLA and the CID. He was interrogated in relation to his involvement with the LTTE and what he had done. He was detained for five days, accused of being a LTTE supporter and mistreated. He was subsequently released. The Tribunal accepts that a few days later he was interrogated by Tamil paramilitary groups who had moved into the camp.  He was detained for another seven days, mistreated and interrogated about his knowledge of the LTTE weapons. He told them the same things he had told the officers at the previous interrogation. When he was released, he was told that he would be called again for interrogation.

5. The applicant claims that subsequently he and his family fled the camp with a large group of Tamils. He also claimed that he did not encounter any further difficulties at the hands of the SLA, CID or paramilitary groups until March 2012 when the was asked to report to a local CID office and was subjected to further interrogation. For the following reasons the Tribunal does not accept these claims and is of the view that after the applicant had left the refugee camp in 2009, the authorities had no further adverse interest in him.

6. First, the country information before the Tribunal suggests that persons with certain profiles, other than prior residency within an area controlled by the LTTE, may be at risk of harm. Those at risk appear to be persons who have a certain level of LTTE links.[1] DFAT also refers to the Guidelines in emphasising that a person’s real or perceived links with the LTTE may give rise to protection. However, whether a person is at risk of harm depends on the nature of the links.[2] The decision of United Kingdom’s Upper Tribunal on Immigration and Asylum in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) refers to similar categories of persons at real risk of persecution or serious harm on return to Sri Lanka.[3]

   [1] UNHCR, UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, DFAT, Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014. Those persons include persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; former LTTE combatants or cadres; former LTTE supporters who may never have undergone military training, but 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; and persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   [3] Upper Tribunal, GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

The applicant has given evidence that he was never a member or a supporter of the LTTE. It is also clear from his evidence that he had carried out labour work for the LTTE at the request of his employer, who was in turn pressured to do so by the LTTE.  According to DFAT, ’Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted’.[4] When the gist of this information was put to the applicant at the hearing, he referred to abductions and the suffering of ordinary people. On the basis of the country information before it, the Tribunal is not satisfied that the applicant would have been the subject of the authorities’ ongoing interest for the type of work he had carried out for the LTTE during the war.

[4] DFAT,n2, above, paragraph 2.27

Secondly, the Tribunal considers it reasonable to expect that if the applicant was of any interest to the Sri Lankan authorities for the reason of his perceived association with the LTTE or the nature if work he had or was perceived to have carried out, he would not have been released after being interrogated by the authorities on two separate occasions in the camp. In the statement submitted in support of his application for a protection visa, the applicant stated that he told his interrogators everything he knew and what he had done. The applicant stated at the hearing that at the camp people were being sorted out, filtered and categorised. Some were put in detention and some were taken to labour or rehabilitation camps. He added that he had escaped before he was categorised. The Tribunal finds this claim neither plausible nor credible. As noted above, the applicant was interrogated extensively on two separate occasions for periods of 5 days and 7 days respectively. If at that time (early 2009) the authorities had considered the applicant of interest for his perceived links with the LTTE, after being identified by LTTE members as a person who had assisted them, he would not have been released to live freely in the camp.

Secondly, as already noted, the authorities did not appear to have shown any interest in pursuing or finding the applicant following his claimed escape from the camp until March 2012. The applicant was unable to provide a persuasive reason as to why the authorities had waited for three years after he had left the camp in order to pursue him. The applicant stated at the hearing that after he escaped from the camp he stayed with a relative for about two months in [another town]. He then built a house at [a specified address in City 1]. He resided at that address until March 2012. He further stated that while he was in the camp he was issued with a temporary ID card. The applicant produced the original at the hearing, which was sighted by the Tribunal. The information on the card indicated that it was issued in June 2009. The applicant’s occupation ([stated]) and his address ([of the specified City 1 address]) also appeared on the card. The authorities, therefore, were aware of his place of residence. While the applicant claimed at the hearing that he had not disclosed his house number to the authorities at the time the ID card was issued, the Tribunal does not consider that this would have prevented the authorities from locating him on [the specified address]. Furthermore, in October 2009, the applicant began working for the [second reconstruction agency] in [City 1] until September 2011. He then worked as a [occupation] for a company also located in [City 1]. Finally, the applicant submitted to the department a copy of an ‘Application for release of an elder/s, member/s of family from IDPP centre acknowledgment’, dated March 2009, addressed to Ms [A] (the applicant’s mother-in-law), acknowledging receipt of her application for the release of the applicant, his wife and their two children. The document, which bears the applicant’s mother-in-law’s address, states that the application will be forwarded to the Security Forces Commander who would make a decision in relation to the application. The Tribunal does not accept that the applicant was in hiding following his claimed escape from the camp and is of the view that the authorities had ample opportunity and knowledge of the applicant’s location and circumstances to enable them to find him with ease. However, the authorities showed no interest in the applicant in the three years following his claimed escape from the camp. The applicant has provided no credible or convincing reason as to why the authorities had become interested in him again in 2012.

Thirdly, the applicant provided the following inconsistent and unpersuasive evidence in relation to his encounters with the authorities in 2012 and his circumstances at that time:

a.At his entry interview the applicant stated that in January or February 2012 the CID came to his house and started asking him questions. They then asked him to go to their camp. He went to the CID camp accompanied by his wife. He stated ‘they did not beat me or anything, they just kept asking me the same questions again and again and I cried...’

In the statutory declaration accompanying his application for a protection visa he stated that ‘in March 2012 (not January or February as previously advised)’, he was ordered to report to the nearby office of the [specific CID group] and was interrogated again over ‘the same matters’. He was released on the same day and returned home. He did not claim to have been physically harmed.

At his protection interview, the applicant claimed for the first time that he was seriously assaulted when he was being interrogated in March 2012. At the Tribunal hearing the applicant reiterated that he assaulted in the course of his claimed interrogation in March 2012. When asked why he had expressly stated at his entry interview that he was not beaten, he said this was due to ‘tension’ and he could not correct his statement later.

In response to the Tribunal's s.424A letter, the applicant stated that he had been seriously assaulted but other detainees had scared him about the entry interview process and he felt tense and stressed.

The Tribunal does not find the applicant’s explanations persuasive or satisfactory. The inconsistencies in the applicant’s evidence casts doubt on the truth of his claims.

b.In his statutory declaration the applicant stated that about 20 days after he was interrogated in March 2012, his wife called him while he was at work and told him the authorities had asked him to again report to their headquarters. The applicant fled to Jaffna and then to his uncle’s house.

At his protection interview the applicant provided a different account, stating that he decided to go into hiding in March 2012 and the first thing he did was to go to Jaffna and work there for 10 days. Then his wife told him that the situation was serious so he went to his uncle’s house.

In the submissions provided by his then representatives in support of his application for review it was reiterated that the applicant had first fled to Jaffna in March 2012.

At the Tribunal hearing, however, the applicant stated that he was already in Jaffna when he received a phone call from his wife, which prompted him to go to his uncle’s house straightaway. When it was put to him at the hearing that this evidence differed to what he had put forward to the department, he stated that he does not have anyone in Jaffna, he was just working there and when he received the call he went to his uncle’s house.

In response to the Tribunal's s.424A letter, the applicant provided yet another account by stating that his wife called him while he was driving to Jaffna as part of his job. He finished his job in Jaffna and then went to his uncle’s house. The Tribunal is unable to reconcile the inconsistencies in the applicant’s evidence and finds his claims in this regard unreliable and lacking in credibility.

c.At the entry interview the applicant told the department that after March 2012 ‘they didn’t investigate me but they went to my neighbours and asked questions and people spoke about a white van looking for me…’

In his statutory declaration he stated that since leaving Sri Lanka the authorities have contacted his wife on three or four occasions searching for him.

At his protection interview the applicant made no mention of any harassment being directed at his wife after March 2012. He made no mention of having received any correspondence from the police or anyone else requiring him to present himself for any purpose.

In support of his application for review the applicant submitted copy and translation of a ‘message’ from the police asking him to report to the Criminal Police Unit in Ngombo [in] April 2012.

At the hearing the applicant claimed for the first time that the authorities have visited his house on numerous occasions and have threatened to sexually assault his wife. When asked why he had not raised the claims in relation to the threats against his wife earlier, he said he has raised these claims at the hearing because of ‘cultural values’, social stigma and shame. He was waiting for an opportunity to mention these claims and he was forced to do so at the hearing.

In response to the Tribunal's s.424A letter, the applicant stated that only after the ‘second message of November 2013’ did he wife tell him about the two messages and the episodes of sexual harassment. The Tribunal does not find these explanations satisfactory. The applicant has been represented by experienced migration agents since lodging his protection visa application and the Tribunal does not accept and the applicant had not disclosed any information in relation to his wife’s claimed experiences at the hands of the authorities at an earlier stage. While the Tribunal appreciates that some applicant may be reluctant to disclose claims of a sexual nature for cultural reasons, the Tribunal does not accept that the applicant was unable to disclose the claim that his wife was being subjected to general harassment at the hands of the authorities in the course of looking for him. The Tribunal also finds it highly implausible that if the applicant’s wife had received a ‘message’ from the police asking the applicant to report to the Criminal Police Unit in Ngombo in April 2012 she would not have disclosed this matter to him until November 2013.

The inconsistencies in, and the unpersuasive nature of, the applicant’s evidence cast significant doubt on his claims that he was pursued, searched for, investigated, interrogated and mistreated at any point in 2012. The Tribunal does not accept these claims.

For all the above reasons, the Tribunal does not accept that the applicant had escaped from the camp. The Tribunal does not accept that after leaving the camp with his family in 2009, the authorities had any adverse interest in him because of the work he had carried out with the LTTE, because he was perceived to have helped in burying weapons during the civil war or because, more generally, he was perceived to be involved with the LTTE. The Tribunal is of the view that after interrogating him at the camp, the authorities had been satisfied that the applicant was of no interest or value to them. The Tribunal does not accept that in 2012 he was approached by the [specific group] CID or anyone else and summoned for interrogation. The Tribunal does not accept that he was interrogated by anyone in relation to his involvement with the LTTE or LTTE weapons. The Tribunal does not accept that he was assaulted or mistreated. The Tribunal does not accept that his neighbours had been questioned about him or that a white van was looking for him. The Tribunal does not accept that the authorities had called the applicant’s home asking him to report to the headquarters. The Tribunal does not accept that he had fled to Jaffna or that he had hid at his uncle's home in [Town 2]. The Tribunal does not accept that since his departure the authorities have contacted his wife on a number of occasions in search of his whereabouts. The Tribunal does not accept that the applicant’s wife has been harassed or threatened with sexual assault as a result of the authorities searching for the applicant.  

Having regard to the reasons already given and the Tribunal’s findings concerning the applicant’s credibility, it does not give any weight to the document, purportedly issued by the Sri Lanka Police, requesting the applicant to report to the ‘Criminal Unit of Police Station in Negombo [in] April 2012. Nor does the Tribunal give any weight to the contents of the letter by [the Member of Parliament], dated [in] December 2014. The letter is devoid of any details as to why the authorities had renewed their interest in the applicant in 2012 and does not resolve the concerns identified by the Tribunal in relation to the applicant’s claims.

The Tribunal is not satisfied that the applicant has a profile that would subject him to a real chance of serious harm because of the labour work he had carried out for the LTTE. The Tribunal is not satisfied that the applicant has a profile that would subject him to a real chance of serious harm for the reason of his actual or imputed pro-LTTE political opinion. The Tribunal is not satisfied that the applicant will be imputed to be will be imputed to be an LTTE member. The Tribunal is not satisfied that he is perceived to have played a role in hiding or burying LTTE weapons or that he is of interest to the authorities for that reason. The Tribunal is not satisfied that he will be perceived to be a collaborator, to hold anti-government views or to hold pro-LTTE links of a nature that would put him at a risk of serious harm. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by the Sri Lankan authorities, paramilitary groups or anyone else for the reason of his actual or imputed political opinion if he were to return to Sri Lanka.

Being Tamil

The applicant has claimed that he fears persecution on the basis of his race as a Tamil. The Tribunal accepts that historically Tamils have faced discrimination in Sri Lanka, including barriers to education and employment. The sense of discrimination among the Tamil community was a primary driver of the civil conflict that gripped the country for many years.[5] According to DFAT’s most recent country information report, partly as a result of the conflict, successive Sri Lankan governments have made some efforts to address these ethnic and linguistic tensions through constitutional, legal and policy changes. There are no official laws or policies in Sri Lanka that discriminate against Tamils on the basis of their race, including in relation to education, employment and access to housing. There is also no government-sanctioned discrimination in the implementation of laws and policies in Sri Lanka. While Tamils can sometimes have difficulty communicating with the police, military and other Government authorities, DFAT has assessed that these practical difficulties are not due to official discrimination as such, but are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of previous discriminatory language policies.[6] The Tribunal accepts that Tamils continue to face a level of societal discrimination in Sri Lanka. The Tribunal also accepts that if a Tamil falls within the risk profiles referred to earlier, he or she is likely to be more vulnerable to ‘arbitrary detention, abductions and forced disappearances’.[7] However, the December 2012 UNHCR Guidelines stated that in light of the improved human rights and security situation in Sri Lanka ‘there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[8] The Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed on account of his race as a Tamil alone if he returns to Sri Lanka. At the hearing the applicant responded to the country information put to him by raising the claims relating to the threats of sexual assault against his wife, which the Tribunal has already dealt with. The Tribunal has found that the applicant does not have a profile that would put him at risk of serious harm for the reason of his imputed political opinion. The Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed by the Sri Lankan authorities or anyone else on account of his race as a Tamil if he returns to Sri Lanka

Failed Asylum Seeker and Illegal Departure

[5] DFAT, Country Information Report – Sri Lanka, 16 February 2015.

[6] Ibid.

[7] UNHCR, n1, above.

[8] Ibid.

1. The Tribunal accepts that the applicant has departed Sri Lanka illegally and that he will be returning to Sri Lanka as a failed asylum seeker. The applicant’s representative’s submission of 28 March 2014 refers to reports that some Sri Lankan Tamils who have returned to Sri Lanka from UK and other countries have suffered abuse. While some sources suggest ‘a period of residence in the UK or other Western country may itself constitute a risk factor’ for torture,[9] other sources, including more recent sources such as DFAT, suggest that the principal focus of the authorities has been ‘persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms’.[10] Similarly, Freedom from Torture reported in 2012 that it was a combination of residence in the UK and an actual or perceived association with the LTTE which placed individuals at risk of torture and inhumane and degrading treatment. It stated that those at particular risk included Tamils with an actual or perceived association with the LTTE, including those returning from abroad.[11] The UK Upper Tribunal also found certain categories of persons to be at real risk of persecution or serious harm on return to Sri Lanka.[12] The Tribunal has found that the applicant was not of any interest to the authorities as an LTTE supporter or member and that he will not attract any adverse interest from the authorities or paramilitary groups if he were to return to Sri Lanka.

   [9] See, for example, Immigration and Refugee Board of Canada,  Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; information on specific asylum cases, including the Tamil asylum-seeker boat that stopped in Togo, the return of Sri Lankan asylum seekers from Australia in 2012, and any cases of voluntary repatriation (August 2011-January 2013), 12 February 2013.

   [10] UK Home Office, Country Policy Bulletin – Sri Lanka, October 2012.

   [11] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2,

   [12] Upper Tribunal, n3, above. The Upper Tribunal identified the following categories: (a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or 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; (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; and (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

2. According to DFAT Tamils arriving in Sri Lanka are subject to the same entry procedures as any other citizen. Returnees, regardless of ethnicity, may be questioned by both the police and the State Intelligence Service and checked against intelligence databases.[13] In August 2011, the Immigration and Refugee Board of Canada (IRBC) reported on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers. The report cited information provided by the Canadian High Commission in Colombo, which noted that ‘[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity’.[14]

   [13] DFAT, Report 1446 – RRT Information Request: LKA40999, 22 October 2012; and DFAT, Country Information Report No. 12/67, 29 November 2012, CX299951. See also UK Home Office, Sri Lanka - Country of Origin Information (COI) Report, 7 March 2012, paragraphs 25.29-25.35, 25-37-25.39, 25.42-25.44; UK Home Office, Sri Lanka - Bulletin: Treatment of Returns, December 2012, paragraphs 3.03-3.04, 3.08-3.25, 3.32-3.42.

   [14] Immigration and Refugee Board of Canada,  Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport’, LKA103815.E, 22 August 2011 CIS29896.

3. In its Eligibility Guidelines, the UNHCR has also referred to questioning of returnees by Immigration officials and the State Intelligence Service. The UNHCR indicated that returnees may receive further contact from the authorities after arriving in their village of destination:

4. UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military. ^[15]

   [15] UNHCR, n1, above.

5. In its October 2014 and February 2015 reports, DFAT continued to indicate that Sri Lankan returnees are treated according to standard procedures regardless of their ethnicity.[16] In November 2012 DFAT advised that it had not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. DFAT stated that it had spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees and that NGOs had told DFAT that they had not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they had facilitated. DFAT referred to advice from the British High Commission in Colombo to the effect that they had received no substantiated cases of mistreatment on return for their returnees.[17] DFAT has also stated that NGOs had not raised specific issues regarding the treatment of Tamils returning to the north and east. It stated that NGOs had not raised with them issues concerning the treatment of Tamils who had lived in other countries where the LTTE was active for extended periods.[18]

   [16] DFAT, Country Information Report – Sri Lanka, 3 October 2014 and DFAT, n5, above.

   [17] DFAT, Country Information Report No. 12/67, n13, above.  

   [18] DFAT, MRT/RRT Information Request: LKA41452, DFAT Report 1478, 28 February 2013.

6. DFAT has stated:

   5.32 Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.[19]

   [19] DFAT, n5, above.

7. On the basis of the evidence before it, the Tribunal is not satisfied that the combination of the applicant’s ethnicity, his past work for the LTTE, his interrogation by the authorities when he was in a camp in 2009 and his living overseas would specifically impute him with having links to the LTTE or expose him to a greater level of interest by the Sri Lankan authorities. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of any pro-LTTE or anti-government political opinion that may be imputed to him because he has lived in Australia or because he has sought asylum in Australia. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reason of his membership of the particular social group of ‘failed Tamil asylum seekers’, or because he is a Tamil who left Sri Lanka illegally and who has applied for asylum in Australia. The Tribunal is not satisfied that there is a real chance the applicant will face serious harm as a result of any follow-up by any other authorities or agencies.

8. Concerning the applicant’s illegal departure from Sri Lanka, according to DFAT, entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). With regard to illegal departure DFAT has advised as follows:

9. Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).

10. Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.[20]

    [20] Ibid.

11. The information consulted by the Tribunal suggests that the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is suspected of facilitating or organising a people-smuggling venture.[21] DFAT advised in October 2012 that, under Sri Lankan law, people who depart from any place other than an approved port of departure and/or depart without valid travel documents can be charged with an offence under the I&E Act. DFAT reported that, for offences committed under the Act, a prison sentence from one to five years and a fine of LKR 50,000 to LKR 200,000 may be applicable. DFAT reported in October 2012 that this was seldom enforced. It also indicated that, in practice, people being intercepted on people smuggling boat ventures were not given a custodial sentence but issued with a fine for the offence of departing Sri Lanka illegally. This was to act as a deterrent.[22] Whilst, later in 2012, DFAT advised that since 2 November 2012 Sri Lankan irregular maritime arrivals returned from Australia have been charged under the law for offences related to their irregular departure,[23] in its October 2014 and February 2015 reports DFAT stated that it had been informed that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. It stated  that the Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats.[24]

    [21] Ibid.

    [22] DFAT Report 1446, n13, above.

    [23] DFAT Report No. 12/67, n13, above.

    [24] DFAT, n5, above.

12. Information before the Tribunal indicates that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail.[25] DFAT has advised that returnees are arrested and held at the airport for up to 24 hours. They are then produced before a magistrate to apply for bail. All persons are granted bail on personal recognisance, with the requirement for a family member to stand as guarantor. There is no requirement to pay for bail. If the person needs to be held for more than 24 hours, for instance when a person arrives on the weekend or a public holiday, they are placed in the remand section of the Negombo Prison until the court is in session.

    [25] See, for example, Doherty, B, Asylum denied, a penalty awaits at home‖, The Sydney Morning Herald, 8 December 2012,

13. The applicant’s representative has submitted that the applicant fears being charged and imprisoned for long periods of time or that he will be in remand longer than most returnees due to his alleged connections to the LTTE and having applied for asylum in Australia. The evidence before the Tribunal however does not suggest, and the Tribunal does not accept, that there is a real chance that the applicant will be detained for a prolonged period of time as a penalty for illegal departure. The Tribunal finds that any period of detention will be short and confined to, at most, a few days. The Tribunal accepts that high-profile former LTTE members who are suspected of committing serious crimes, including terrorism offences are at risk of torture. According to DFAT, this is due in part to the use of torture to extract information or confessions from suspects, and the extended period these people may spend in pre-trial detention. The Tribunal has already found that the applicant is not of interest to the authorities and would not attract adverse attention from the authorities. The Tribunal is not satisfied that he will be imputed with a political opinion because of his illegal departure or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group apparent on the face of the evidence.

14. There is no persuasive evidence before the Tribunal to suggest that the applicant would be detained for longer periods of time for any other reason. The evidence before the Tribunal does not establish, and the Tribunal is not satisfied, that the applicant will be singled out for torture or mistreatment, that he will be subjected to excessive punishment or that he will be treated any differently if he is placed in remand for a short period because he is a Tamil, or for any other Convention reasons. There is no information before the Tribunal to indicate that returnees held in remand awaiting bail hearings have been subjected to torture or ill-treatment.

15. The Tribunal accepts that the applicant may be questioned at the airport, charged and placed in remand for a short period. The Tribunal also accepts that prison conditions in Sri Lanka may be poor. However, as it was put to the applicant at the hearing, the sources consulted suggest that the treatment the applicant might face upon his return applies to all persons, regardless of race or religion. Tamils are not singled out.

16. At the hearing, the applicant responded to the country information put to him by stating that at the airport everyone is treated equally because they are being monitored. He also acknowledged that he would be interrogated and released but added that when he returns to his home he will face the same problem.

17. The Tribunal is not satisfied, therefore, that being questioned, arrested, charged and detained for a short period  in poor conditions, which may include overcrowding and poor sanitation,  amount to systematic and discriminatory conduct as required by s.91R(1)(c). The Tribunal finds that the processing of returnees and any penalties that may be imposed on the applicant are the result of the non-discriminatory enforcement of a law of general application.

18. Based on all of the evidence before it, considered individually and cumulatively, the Tribunal is not satisfied there is a real chance that the applicant would face serious harm amounting to persecution for the Convention reasons of his Tamil race/ethnicity, his actual or imputed political opinion or his membership of a particular social group if returned to Sri Lanka.

    Complementary Protection

19. For the reasons referred to in paragraphs 37-48, the Tribunal is not satisfied that the applicant has a profile that would subject him to a real risk of significant harm because of the labour work he had carried out for the LTTE. The Tribunal is not satisfied that the applicant has a profile that would subject him to a real risk of significant harm for the reason of his actual or imputed pro-LTTE political opinion. The Tribunal is not satisfied that the applicant will be imputed to be will be imputed to be an LTTE member. The Tribunal is not satisfied that he is perceived to have played a role in hiding or burying LTTE weapons or that he is of interest to the authorities for that reason. The Tribunal is not satisfied that he will be perceived to be a collaborator, to hold anti-government views or to hold pro-LTTE links of a nature that would put him at a risk of serious harm. The Tribunal is not satisfied that there is a real risk that the applicant will be significantly harmed by the Sri Lankan authorities, paramilitary groups or anyone else for the reason of his actual or imputed political opinion if he were to return to Sri Lanka.

20. As noted in paragraph 49, the Tribunal accepts that Tamils continue to face a level of societal discrimination in Sri Lanka. However, the Tribunal is not satisfied that the discrimination the applicant may be subjected to amounts to any form of significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that the applicant faces a real risk of being significantly harmed by the Sri Lankan authorities or anyone else due to his race as a Tamil.

21. The Tribunal accepts that the applicant would likely face arrest on charges of illegal departure. Consequently, he could be placed in remand for a relatively brief period while awaiting a bail hearing and would later be fined if found guilty. The Tribunal, however, is not satisfied that there is evidence of mistreatment of returnees while in remand. The applicant stated at the hearing that he would be prepared to return to Sri Lanka if the Australian Government guaranteed his safety. As noted above, there have been large numbers of reported involuntary and voluntary returnees to Sri Lanka. The majority of these returnees are Tamils who departed Sri Lanka illegally by boat. There have been no persuasive reports of such persons suffering significant harm as defined by s.36(2A). The applicant did not claim, and the Tribunal is not satisfied, that the applicant would be exposed to significant harm by virtue of the fine that may be imposed on him upon being returned to Sri Lanka. The Tribunal is not satisfied that there is a real risk that the applicant will be subjected to torture, or any other form of, mistreatment amounting to significant harm upon his arrival; during or as a consequence of any questioning at the airport or during any period which he may spend in prison or detention on remand upon his return. 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 that he will suffer significant harm during any period which he may spend in prison on remand.

22. The Tribunal has considered the department’s PAM3 Refugee and humanitarian - Complementary Protection Guidelines in relation to imprisonment/prison conditions. However, the Tribunal is not satisfied that the detention conditions the applicant would most likely face in relation to his illegal departure if he were to be remanded for a short period of time, including overcrowding and poor sanitary conditions, amount to any form of significant harm as contemplated by s.36(2A) or that such treatment is intentional as is required by the Migration Act. 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 that he will suffer significant harm as a consequence of the poor conditions in prisons during any period which he may spend in detention on remand.

1. For the reasons provided above, the Tribunal is not satisfied 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 be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

2. The Tribunal, therefore, 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).

3. 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).

4. 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

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

   Shahyar Roushan
   Senior Member