1314529 (Refugee)

[2015] AATA 3249

1314529 (Refugee) [2015] AATA 3249 (27 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1314529

COUNTRY OF REFERENCE:              Sri Lanka

TRIBUNAL MEMBER:  Stuart Webb

DATE:27 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 27 July 2015 at 4:27pm

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

2. The applicant who claims to be a citizen of Sri Lanka, applied to the Department of Immigration for the visa [in] December 2012 and the delegate refused to grant the visa [in] September 2013.

3. The applicant appeared before the Tribunal on 20 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. The applicant was represented in relation to the review by his registered migration agent. The applicant provided the delegate’s decision to the Tribunal.

   RELEVANT LAW

4. 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.

   Refugee criterion

5. 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).

6. 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.

7. 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.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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

19. The applicant provided the following statement with his application.

    My name is [name] and I am a [age] male born in Colombo, Western Province, Sri Lanka. My ethnicity is Tamil and my religion is Roman Catholic. My wife and children remain in Sri Lanka. My mother and siblings also reside in Sri Lanka. My father went missing

    Why I left my country:

    At around the beginning of July 2010, two men in plain clothes came to my house looking for me. I was in the front yard sweeping the concrete at the time. They stated that they wanted to question me. They moved me to the back yard, away from peoples view. They asked me a lot of questions about myself, my work and restaurant and if I was supporting the LTTE. They asked to see all my identity documents as well. They were very aggressive and said that they knew all about me. They threatened that I should be careful, then they left.

    Around 10 days later, three men on a bike came to my shop. I was at the shop on my own. I was closing the shop for the day and the men called me outside. They threatened me and told me to get on the bike between two of the men. They drove a short distance, and we got off the bike near the beach. The blindfolded me and tied my hands behind my head. They then put me into a vehicle, I think it was a van. I screamed, "Please tell me what you want, where are you taking me?!". They told me off to stop screaming or they would beat me over the head. The vehicle then started moving, and we drove for around forty minutes.

    When we stopped, they took me into what I think was a room. I was still blindfolded, but they took all my belongings and taken all my clothes off. They started to question me and say, "Why were you going to Colombo? What were you doing there? Where are the bombs and weapons were kept? Who do you work for? What is your involvement with the LTTE? Tell us or we will kill you". They were also asking me about my knowledge and involvement in a bomb blast that occurred in Colombo in 2006. They kicked me and beat me. I fell down on the ground and was crying and begging them to tell me what the problem was. I told them I was not involved in any way with LTTE and have done nothing wrong, that I have a wife and children.

    The next day they removed the blindfold. Everything was dark, I couldn't see anything, but I could see that it was a big room. The next day they came back and started questioning me again and were torturing me and hitting me. They pointed a gun at me too. I again begged and told them that they stop because I had told them everything about me and I did not know anything about what they were talking about. I told them they could go and check all my personal details with my former employer and the police station.

    The second day, they put the blindfold back on me and I think they put me back into the vehicle. As we were driving, they spoke to me and said this time, you are escaping from us now, but we are watching you and anytime we will come back for me. They also threatened that if I went to the police or the media they would kill me and my family. They left me near a forest, still blindfolded and told me not to remove the blind fold until the vehicle had gone. When I removed the blindfold I did not know where I was. They had taken most of my money.

    When I got home, I told my wife and mother what happened. They were very concerned about my safety and told me I should go to the police, but I refused.

    Around two weeks after this incident, I started to go back to the shop every now and then, as I was too scared to work full-time. Men started to come into my shop and would demand food, money and alcohol. They also called making demands for things. After a while I decided to stop working completely, as I was becoming quite scared by the whole situation.

    I became too scared to continue working and decided to go to [Country 1] to try and look for jobs. In [Country 1], I met my brother in law who told me that [Country 1] was not safe for us. We then decided to come to Australia.

    What I fear might happen if I go back to my country:

    I fear that I will be abducted again, tortured like before or worse, they might kill me.

    Who I think will harm or mistreat me if I go back:

    CID, or Karuna Group or former LTTE members.

    Why I believe they will harm or mistreat me if I go back:

    They suspect that I work for the LTTE was involved in the bombings that were taking place in Colombo. I believe that they suspect me because I am Tamil and lived in Colombo.

    Being a Tamil, I am always at danger of getting into trouble from the government authorities.

    Why I believe that the authorities in my country will not protect me if I go back:

    The police will not do anything to protect me. They are corrupt and only do everything in their favour. I have to protect myself.

    Why I believe I will suffer significant harm:

    They suspect that I work for the LTTE and was involved in the bombings that were taking place in Colombo.

    Other matters that I would like the Department to take into account:

    I had a good life in Sri Lanka. I never had any problems. I have a family, home and a good restaurant, but it is only after these problems that I felt that I had to flee the country to save my life.

20. The applicant provided a series of documents pertaining to his identity.

21. Further information regarding his claims were provided at the depart meal interview. The applicant stated that he had never had any connection with the LTTE. The applicant stated that he had been detained for two days in 2006, beaten, questioned and released without charge in connection to a bombing that occurred in Colombo where he was working at the time.

22. The applicant claimed that the harassment was to ascertain his involvement with the LTTE, but also because the army had opened a shop of its own and wanted him to close his and relocate. He was so scared he went into hiding, staying with his [sibling] in Colombo before fleeing to [Country 1] then Australia. a number of people from his village have been abducted and ordinary Tamils are always in danger.

23. The applicant’s agent submitted that the applicant feared persecution on the ground of his race, imputed political opinion and membership of a particular social group being ‘returnee asylum seeker’.

24. The delegate accepted in the historic context of Sri Lanka that the applicant had several adverse encounters with the Sri Lankan security services during the period of the civil war, that he had been detained for 2 days without charge in 2006, and that he was beaten at that time. The delegate also accepted that the applicant may have been subjected to random questioning when he worked for a company [between] 1993 and 2007. The delegate accepted that unknown persons came to his restaurant in Batticaloa four or five times after 2009 demanding food and alcohol without payment. The delegate accepted that the applicant was forced to move his shop, as country information cited shows that the military had opened business ventures in the north and east, and the delegate accepted that the applicant could have been harassed as a rival business.

25. The delegate then considered the events of 2010, including the claimed visit by the CID to his home, and then 10 days later the abduction from his restaurant. The delegate had doubts regarding this claim and was not convinced that this incident occurred. The delegate noted that the applicant was unable to provide any clear indication who these people were, presuming them to be CID. He was unable to explain why he would be targeted in 2010 after the vents of 2006. The description of the kidnap and torture in a manner that convinced the delegate that the applicant had actually experienced it, that it was not plausible that after being held for two nights he would be released and told not to go to the police or media. The delegate considered the applicant’s responses to questions about this and whether he was of ongoing interest to the authorities, the delegate found the applicant to be vague.

26. The delegate did not consider that the applicant had a profile that would see him arrested and arbitrarily detained. Given that he was released in 2006, the delegate considered it unlikely that the applicant would be of ongoing interest to the authorities in Batticaloa in 2010. When asked by the delegate about the Karuna group, the applicant stated that “I cannot distinguish those persons; they all act together with the security forces.

27. The delegate did not accept that the applicant had continued to be targeted by the authorities, but that he had a subjective fear of the authorities.

28. The delegate considered that the applicant was not a person who would be of interest to the authorities for any suspected LTTE connection. The delegate considered that if the authorities “know all about him”, they would have arrested him if they considered him a security threat. With respect to harm from the paramilitaries, the delegate noted that these groups were said to be primarily involved in criminal operations, that  the applicant was not politically active, and that there was little interest in the applicant overall. The delegate did not accept that the applicant would be harmed because of his Tamil ethnicity or imputed political support for the LTTE.

29. The delegate considered evidence regarding returning asylums seekers and determined that the applicant would not be harmed for this reason. The delegate also considered the claim that the applicant feared harm because he had left the country illegally. The delegate considered that the applicant may face charges under 45(1), but that this was not a law applied discriminately, or that the prosecution would result in persecution.

30. The applicant’s agents provided a submission to the Tribunal in November 2013, shortly after lodging his review application. This again stated that the applicant feared persecution because of his Tamil race; his, imputed political opinion as a Tamil male who travelled to Australia, that he had travelled abroad, and that young Tamil males are regularly suspected as supporting the LTTE; and as a member of a particular social group described as a failed asylums seeker or returnee from a Western country, he would be accused of being a spy.

31. The submission stated that the delegate should not have made adverse credibility findings given the applicant was in fear of the authorities and that the kidnapping had been traumatic, that he provided a consistent recount of the events and should not be considered vague. It was submitted that the situation in Sri Lanka remained precarious and ethnic tension still existed.

32. Country information regarding the Sinhalisation of Sri Lanka, concerns for Tamil, actions of authorities against human rights defenders, and that returnees have been questioned and subjected to arbitrary arrest. The applicant would be constantly harassed in Sri Lanka, to a degree that it met the definition of significant harm .

33. A post hearing submission was provided by the applicant’s agents. It included a medical statement dated [in]8/2014, which stated that the applicant’s son had been assaulted,  with a photo of a scar [provided]. The applicant stated that men had come to his home and  The submission noted that the Tribunal accepted that the applicant had faced harm in the past, and submitted that the applicant’s son had been targeted recently, which was emblematic of the ongoing issue for the applicant. It was submitted that this there was country information that Tamils who had travelled aboard and sought asylum were at risk of harm if returned to Sri Lanka. The submission included references to country information about people who had returned. The authorities had no interest in protecting Tamils, and were in fact perpetrating some of the violence.

    FINDINGS AND REASONS

    Country of nationality

1. The applicant claims to be a citizen of Sri Lanka, and has consistently claimed this. He has provided documentary evidence to the Tribunal in the form of a copy of a birth certificate, with the applicant’s name and date of birth shown. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.

   Third country protection

2. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Credibility

3. The Tribunal questioned the applicant at length about his circumstances and his personal experiences in Sri Lanka. The Tribunal found the applicant to be forthright and open about events that he claimed occurred in Sri Lanka. The Tribunal has no issue with the credibility of the applicant.

   Claims

4. The applicant has claimed that he has had a series of interactions with the authorities and unidentified armed men over a period of time. The Tribunal accepts that the following events are true accounts of the applicant’s circumstances.

5. The Tribunal accepts that the applicant has had interaction with the authorities during the civil war, arising from his proximity to a bombing when he was living in Colombo. The Tribunal accepts that the applicant was apprehended, detained, questioned, photographed and beaten during this detention. As stated by the applicant, after being held for two days, was released without charge and was not rearrested by the authorities. The applicant stated that he was not the only person who was arrested at that time, other Tamil men and women were arrested. The Tribunal accepts that this occurred, it is consistent with information about the activities of the authorities in this part of Sri Lanka during this time.

6. The Tribunal also accepts that the applicant was stopped in the streets of Colombo by the authorities at random during the period of the civil war, again in a manner that was similar to many other Tamils living in Colombo during this time. Again, this level of  activity by the authorities at this time is not inconsistent with the country information at this time.

7. The applicant moved to [Batticaloa], the applicant stating that his wife was about to have a child and he wanted to move away from Colombo. The applicant claimed he established a restaurant/café in this area.

8. The Tribunal accepts that the applicant had some interaction with unknown men who took items from his business, and that he faced difficulties with the Sri Lankan army as his café was in competition with that of the authorities. There is relevant country information that discusses the establishment of rival businesses by the SLA in the north and east of Sri Lanka, and the Tribunal accepts that as a rival competitor the applicant would face some difficulties from the army run businesses, though this did not reach the level of serious or significant harm, so defined.

9. The applicant has claimed that since moving to Batticaloa he has continued to be harmed by unknown persons. The applicant was consistent in his evidence that had been provided previously, and his account of being abducted in July 2010 was credible, given the level of detail he was able to provide regarding his experience at that time. The applicant could not identify who had subjected him to this mistreatment at that time, but he recounted information from them that demonstrated that they were aware of the applicant and his history. The Tribunal accepts that the applicant was questioned in July 2010 outside of his restaurant, and then abducted shortly after, questioned about his activities during the war, and beaten before being released. The Tribunal does not believe that the applicant voluntarily went with these men, but was forced to go with them in fear for his own and his family’s lives.

10. Because of this experience, the applicant closed his shop, and within a month the applicant had moved to Colombo and stayed with his [sibling]. He stated that his family came for a short period, stayed for two weeks and returned to Batticaloa. The applicant resided in Colombo for a year. He was working in a shop. The applicant stated that he was in hiding, though conceded that he was able to go out and did not have any problems in Colombo.

11. The applicant organised for a passport to be issued to him. He departed legally from the airport, where he had no difficulties leaving.

12. The applicant claimed that while he was in [another country], in April or May 2012, some people came to his home. The applicant stated that they did not identify themselves to the applicant’s wife. The Tribunal expressed its concern that the applicant had not raised this issue earlier, given the opportunity he has had to do so. The applicant stated that he could provide a letter from his wife, but the Tribunal questioned how much weight would be placed on it so long after the incident had occurred and questions over the genuineness of a letter of this nature. The Tribunal notes that the applicant has been able to provide letters from two priests from his home area, including one dated August 2012, which has no reference to any further incidents, and another, undated, which was written when the applicant was in Australia.  The Tribunal is concerned by the late raising of this aspect of the applicant’s claims.

13. With respect to the incident in August 2014, this incident is of some concern to the Tribunal. The applicant claimed that ‘the same people’ came to his family home at midnight and demanded money, claiming that the applicant was in Australia and sending money to his family. They demanded 20 Lakh. The applicant stated that his son started screaming, lights were put on and neighbours came round to see what was happening. The applicant stated that his son was beaten, leading to the [scar]. If the neighbours had not come around the applicant stated he feared what might have happened.

14. The applicant stated that his wife had gone to the police but had faced difficulties as she was alone. The applicant stated that the police had inappropriately suggested that they could come over and stay in her home, given that the applicant was overseas. The applicant stated that because of this, his wife was very wary of involving the authorities, given her vulnerability and the way she had been treated.

15. The Tribunal questioned whether the applicant would face a real chance of serious harm so long after the end of the civil war, and so long after the incident with the men in July 2010. The applicant was adamant that there were ongoing difficulties for Tamils in Sri Lanka now, and that he would face further threats were he to return. The applicant pointed to the difficulties his family had faced more recently, with the injury that his son had received. The incident where his son was injured would appear to be for reasons other than the applicant’s reasons for leaving Sri Lanka initially, given the demand for money because the applicant was overseas, however the Tribunal accepts that this incident occurred. It is of concern to the Tribunal that there has been a course of action by the military in targeting the applicant and now his family because of the applicant’s activities in running and managing a restaurant in competition to the military business in his area, and now his being perceived as a source of money given his residence in Australia.

16. The decision of the delegate referenced country information regarding the military having business interests in areas of Sri Lanka previously occupied by the LTTE. A report from Minority Rights Group International of September 2013 stated that in the north and the east, ‘the military also runs businesses, farming and development projects, and controls civil society activity in these areas’. An ICG report of March 2012 states that

    In addition to its agricultural work, the military is involved in a growing range of commercial activities in the north. Most noticeable are the army-run restaurants and shops along the A9 highway, as well as army trading posts scattered throughout the province. Many Tamils complain the shops are undermining local entrepreneurship and denying economic opportunities for local residents, though the exact impact is hard to measure. The army has also announced the formation of a private construction company to handle development contracts in the north

    The military has also moved into the tourist market. The army has established a number of hotels and guesthouses in the north.178 The air force has expanded flights by its commercial wing and now serves Jaffna, Kilinochchi, Vavuniya and locations in the east. The navy, for its part, is reported to manage its own ferry services.

    Since the end of the war, the military has been involved in a range of economic spheres throughout the country. In addition to the businesses active in the north, the army has its own travel agency and tour service (Air Travel Services), the navy offers whale-watching tours off the south-western coast, and the defence secretary is the head of a private security company that contracts to government departments and private clients.

    The TNA complains the army’s businesses “impact negatively on the local economies. By appropriating the limited economic opportunities that might otherwise be used by local residents to bring income and revenue to the fragile local communities, the military is sustaining and reinforcing the cycle of poverty. With the access and advertising support of corporate entities in the South and the unfair benefits of highly subsidized cost structure through the use of state infrastructure the military is distorting and suppressing any attempt at economic recovery in the North”.[1]

    [1] Sri Lanka’s North II: Rebuilding under the Military, Crisis Group Asia Report N°220, 16 March 2012

17. In the report, The Long Shadow Of War, The Struggle For Justice In Post-war Sri Lanka, The Oakland Institute states:

    Sri Lanka’s army still occupies “high security zones” in the North and East of the country. In 2014, at least 160,000 soldiers, almost entirely Sinhalese, were estimated to be stationed in the North. With the Northern Province’s population estimated at just over one million in 2012, this yields a ratio of one army member for every six civilians, despite the official end of hostilities six years ago.

    This military occupation is not about ensuring security. The army has expanded non-military activities and is engaged in large-scale property development, construction projects, and business ventures such as travel agencies, farming, holiday resorts, restaurants, and innumerable cafes that dot the highways in the Northern and Eastern Provinces. The army officially runs luxury resorts and golf courses that have been erected on land seized from now–internally displaced peoples. Tourists can book holidays in luxury beach resorts by directly calling reservation numbers at the Ministry of Defence.

    These resorts and businesses are located on lands that were previously home to the local Tamil population, who were displaced by the war. They see no sign of return, despite numerous demands and petitions.[2]

    [2] The Oakland Institute, "The Long Shadow of War – The Struggle for Justice in Postwar Sri Lanka", 01 May 2015

18. The Tribunal considers that the army has identified the competition to their own business interests that the applicant presented as a reason to target him in his home area. The army has some limited information on the applicant arising from his time in Colombo, where he was taken in and questioned after bomb blasts in his area. The applicant is also a Tamil who was residing in an area that was influenced by the LTTE for a period of time during the war. While the Tribunal does not consider that the applicant was a member or supporter of the LTTE at any stage, nor suspected of being an LTTE member, the Tribunal accepts that the military would arbitrarily label the applicant as a member of this organisation despite their being no basis to this accusation. The Tribunal accepts that the army, in seeking to harm a competitor to their operations, would not be concerned about the truth of any allegation while acting with impunity in the aftermath of the civil war. The Tribunal accepts that the applicant was targeted by the military in the aftermath of the civil war because of his business operations and because he was a Tamil.

19. The circumstances would appear to have changed now, as the applicant no longer operates a business that is in competition with the military in his home region. The Tribunal therefore has to consider the reason for the attack on the applicant’s family more recently, where demands for money were made against the family by people whom had been identified as attacking the family previously. Given that it was his wife who identified these people as having previously been to their home, it is reasonable to conclude that that these men were involved in either the September 2012 visit to the home, where people came looking for the applicant, or had been involved in the periodic visits to the restaurant when it was operating. The applicant’s wife would not know the men who had taken the applicant away. From the information provided, it would appear that the men who have come to the applicant’s home know something of the unfounded allegations made against the applicant’s husband. It is reasonable to conclude that they have some association with the military to arrive and make accusations, in the first instance, including information as presented to the applicant by the military previously, or demand money from the applicant’s wife in the second. The vulnerability of the applicant’s family was identified as a being a reason to demand money from them, alone as they are, and without support other than what the applicant is remitting from Australia. That they had previous connections to the applicant, and had threatened him for different reasons in the past, does not alter the circumstances that these people, either actual military personnel, or closely associated with the military, have identified the applicant and his family and are seeking to harm them. The harm, as evidenced by the scarring to the applicant’s [son], is serious.

20. The Tribunal has considered whether the harm feared is for a Convention ground. This is difficult, as the circumstances have slightly altered, business concerns to monetary demands, though the perpetrators of the threats and violence are associated. It demonstrates how the convention grounds do not always easily fit the factual elements of the claims. In these circumstances, the Tribunal has considered whether the applicant is a member of a particular social group that could be determined from his circumstances, in particular, as a Tamil businessman.

21. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

22. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

23. From the evidence accepted it would appear that members of the military have targeted the applicant because he was running a rival business to their own, and as a Tamil they had significant ability to target, threaten and harm the applicant without fear of recrimination. Having caused the applicant harm through their violent acts, getting him to shut his restaurant and flee the area, the violence against the applicant has continued, most specifically, against his family. In this instance, targeting the applicant for his perceived wealth, the perpetrators of the violence have harmed the applicant’s son. It is stated, and the Tribunal has no reason to question the evidence of the applicant which has been consistent throughout, it was the same people who had come to the family home at an earlier stage and threatened his family. They knew of the past dealings with the applicant, leading to a reasonable conclusion that they are either SLA members or closely aligned to the SLA. Again, they are able to act in this manner as they have no fear of retribution, given the power that the military has over the population in this region of Sri Lanka.

24. That they have acted in this manner in the past on several occasions over a reasonable period of time leads the Tribunal to a finding that it is certainly possible that further incidents of this nature will occur in the future. The Tribunal cannot discount the possibility of an incident of violence of this nature occurring in the reasonably foreseeable future.

25. The Tribunal finds that the applicant has a real chance of serious harm arising from his membership of a particular social group of Tamil businessmen, now and in the reasonably foreseeable future. The Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason.

26. The Tribunal has considered the issue of State Protection. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

27. The agent of this violence is an arm of the State, being the Sri Lankan Army. Whether these SLA members are acting on direct orders, pursing economic advantage by destroying the competition, or with the knowledge that whatever action they take would not be held against them, the Tribunal does not consider that the State would provide the applicant with adequate protection.

28. With respect to relocation, the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

1. The Tribunal does not accept that relocation from the harm is possible for the applicant in his circumstances. The Tribunal notes the country information pertaining to returning failed asylum seekers, of which the applicant would be one. On return to Sri Lanka, the applicant will be identified as someone who left Sri Lanka and is likely to be identified as a failed asylum seeker. Country information provided by DFAT with respect to people returning to Sri Lanka. The Tribunal notes that the applicant did not leave Sri Lanka illegally, but that it is certainly likely that his seeking asylum would be assumed. The October 2014 DFAT report states:

   3.74 Returnees from Australia on charter flights are processed by DoIE, the State Intelligence Service (SIS) and Airport Criminal Investigations Department (CID). This process involves:

   . DoIE confirming the returnee’s identity, their nationality and any offences committed under immigration law;

   . State Intelligence Service checking the returnee against intelligence databases; and

   . Airport CID verifying a person’s identity to then determine whether the person has any outstanding criminal matters.

   3.75 Returnees are considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. The CID will commence an investigation into the offence, including interviewing returnees about their illegal departure from Sri Lanka. Returnees are considered to be under arrest for the offence during this process in accordance with Sri Lankan law. As part of the investigation, fingerprints would usually be taken and the person photographed. Deputy Inspector General of CID has advised that the CID endeavours to complete all processing at the airport as quickly as possible.

   3.76 For returnees traveling on temporary travel documents, police undertake an investigative process to confirm the person is not trying to conceal their identity due to a criminal or terrorist background. This involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal records.

2. The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:

   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.[3]

   [3] UN High Commissioner for Refugees, „UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka‟, 21 December 2012, p.8

3. The Tribunal considers that as part of the process of returning to Sri Lanka it is incumbent upon the applicant to return to his home region, if only for the purpose of being visited by the authorities. This causes some difficulty for the applicant in relocating to a different location within Sri Lanka, as he is required to return to the very location he fears he will be targeted by the SLA.

4. Given this information, the Tribunal considers that the applicant cannot relocate within Sri Lanka to a location where he does not face a real chance of serious harm.

5. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

6. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Stuart Webb
   Member