1315841 (Refugee)
[2016] AATA 3530
•7 March 2016
1315841 (Refugee) [2016] AATA 3530 (7 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1315841
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Fraser Syme
DATE:7 March 2016
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 March 2016 at 4:35pm
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
The applicant is a [age] man from Northern Province, Sri Lanka. According to the applicant, his family home was destroyed during the Sri Lankan civil war and his family lived in an internally displace persons (“IDP”) camp. The Sri Lankan authorities suspected he has links to the Liberation Tigers of Tamil Eelam (“LTTE”). He was questioned and detained many times as well as threatened at gunpoint. His brother was a member of the LTTE. His family land was appropriated by the Sri Lankan army to build a base without compensation, when he complained about that, he was prevented from fishing. He evaded a kidnap attempt he suspects was by the Sri Lankan authorities. Since departing Sri Lanka, the authorities have been looking for him. He fears the Sri Lankan authorities will for a number of reasons consider he is a supporter of the LTTE and will harm him if he returns to Sri Lanka, including because he is a Tamil from Northern Province, there is militarisation and Singhalisation of Northern Province, he applied for asylum in Australia and he departed Sri Lanka illegally.
The applicant applied to this Tribunal on [date] October 2013 for review of a decision made by a delegate of the Minister for Immigration on [date] October 2013 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act (1956).
This review application raises the following issues for the Tribunal to determine:
a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Sri Lanka.
b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Sri Lanka
HISTORY OF APPLICATION FOR REVIEW
The applicant who claims to be a citizen of Sri Lanka arrived in Australia as an unauthorised maritime arrival in August 2012. He applied to the Department of Immigration for a protection visa in January 2013. The delegate conducted an interview with the applicant in July 2013 with the assistance of an interpreter in the Tamil and English languages. The Tribunal has listened to a recording of that interview. The applicant provided to the department his Sri Lankan passport; birth certificate; identity card; university student ID; ration card; tsunami card; school records and a letter from a Church.
In the decision under review, the delegate found on the basis of the applicant’s past history of residing in an IDP camp and his frequent overseas travel, the applicant had fabricated his claims he was harassed by the army or CID or because he was a fisherman. On the basis of country information, the delegate found the applicant did not have real chance of serious or significant harm because he is a Tamil, had an imputed pro-LTTE political opinion or as a young Tamil from the north or due to Singhalisation of the north, if he returned to Sri Lanka
The applicant appeared in person before the Tribunal at two hearings to give evidence and present arguments. The first hearing was on 18 March 2015, that hearing was adjourned when the allocated time for the hearing had ended and the Tribunal was yet to discuss with the applicant all of the relevant issues due to the applicant attending the hearing an hour after the scheduled start time. A resumed hearing was held on 20 April 2015. The Tribunal hearings were conducted with the assistance of onsite interpreters in the Tamil and English languages. The Tribunal acknowledges there has been a passage of time since it conducted the hearings, however the Tribunal has listened to the electronic recording of the two hearings prior to finalising this decision.
The applicant was represented in relation to the review by his registered migration agent. The migration agent attended the hearing in person and provided written submissions to the Tribunal before the first hearing, between the two hearings and after the resumed hearing. The Tribunal has had regard to the submissions, which are discussed in more detail below. Prior to the hearing, the applicant provided a news report said to be about his father and a letter from a priest. After the hearing, the applicant provided to the Tribunal an English translation of the news report regarding his father as well as documents (with English translations) said to show his brother was released to their father after the brother had been through rehabilitation.
Between the first and resumed hearings, the migration agent submitted there was a reasonable apprehension the Tribunal had not conducted the first hearing with an open mind. During the second hearing, the presiding member conceded his displeasure with the applicant arriving at the first hearing an hour late, but did not agree he had closed his mind to the issues before it. The migration agent responded she made the submission on the basis if a claim of bias had not been put to the Tribunal during the hearing, it would be more difficult to make such a claim at any point in future, however she was not advancing the Tribunal had been biased and considered the resumed hearing was conducted in a fair manner. The Tribunal is satisfied having regard to whether a reasonable person would apprehend the Tribunal had closed its mind, the Tribunal’s view is a reasonable person would not conclude the Tribunal had closed its mind it has considered the applicant’s claims with an open mind and reached a decision based upon its assessment of the evidence before it. As set out in detail below, the Tribunal has rejected some of the claims of the applicant for reason of credibility and it has accepted some of his claims. Other claims it has given the applicant the benefit of the doubt. The Tribunal is of the view this supports its having had an open mind to the issues before it
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
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 (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There are two DFAT country information assessments regarding Sri Lanka, to which the Tribunal has had regard: DFAT Country Report – Sri Lanka (“DFAT Country Report”) and DFAT Thematic Report – People with links to the Liberation Tigers of Tamil Eelam (“DFAT Thematic Report”). Since the date of the hearing, a new Country Report on Sri Lanka was issued by DFAT on 18 December 2015. That report replaces the earlier Country Report and the Thematic Report. The Tribunal has had regard to all three reports. It has compared the information in the earlier reports and the new report. The Tribunal considers the relevant information in the new Country Report is materially the same as in the prior reports that it discussed with the applicant during the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In making its findings, the Tribunal is mindful the applicant has incomplete tertiary level of education and was [age] at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at both hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.
The Tribunal finds the applicant is a national of Sri Lanka. He provided a copy of his Sri Lankan identity documents. He made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the village where he resided before departing Sri Lanka and where his aunt continues to reside to be his home region in Sri Lanka.
The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal put to the applicant during the hearings it considered his credibility was an issue.
Well-founded fear of persecution
The Tribunal is mindful it must consider the applicant’s chance of harm not only currently but into the reasonably foreseeable future. In making its findings, the Tribunal has considered PAM3 Refugee and humanitarian - Refugee Law Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
At the hearings, the Tribunal discussed with the applicant in detail all of his claims.
Past harm
In summary, the applicant’s claims are his family home was destroyed during the Sri Lankan civil war and he lived in an IDP camp. His brother was a member of the LTTE for few months and has been rehabilitated. In 2008, he was questioned by the CID because he was outside his home area and was told to return to his home area. He escaped an attempted abduction in 2010, which he suspects was at the hands of the Sri Lankan authorities. The army have confiscated his family land, firstly building a checkpoint and then a base – which also spreads over land owned by other villagers. In 2012 he complained to the army about that, following which, his brother was assaulted. Also in 2012, he was removed from a bus by CID officers who told him they had information he was a member of the LTTE. He was told to report to the Sri Lankan authorities monthly – which he failed to do because he left Sri Lanka before reporting in the second month.
The Tribunal accepts some of the applicant’s claims. On the evidence before it, the Tribunal is willing to accept his family were displaced during the Sri Lankan civil war. He provided IDP and ration cards to establish that. These claims are consistent with available country information provided by his migration agent and in the DFAT country report regarding people from his home area were in IDP camps during the Sri Lankan civil war. The Tribunal is willing to accept too that part of his family land has been confiscated by the Sri Lankan military. He provided a newspaper report of people from his home village complaining about their land, which he says includes a photograph of his father. This claim too is consistent with country information provided by the migration agent, in the DFAT report and set out in more detail below regarding military land confiscations, particularly in the applicant’s home province. The Tribunal is willing to accept too the applicant has been questioned in the past on multiple occasions by the Sri Lankan authorities about whether he was a member of the LTTE during the period of the Sri Lankan civil war and in the years after it. It is willing to accept too during that questioning, he was threatened and was grabbed around the throat and that experienced distressed the applicant. Those claims too are consistent with country information provided by the migration agent and set out in more detail below.
For the following reasons, however, the Tribunal does not accept: the applicant’s brother was a member of the LTTE; he was threatened at gun point; he was taken from the bus by the CID and asked to report monthly, nor does it accept any harm has come to the applicant or his family because the army has confiscated his family land. The Tribunal considers the applicant has exaggerated or fabricated these claims so as to create profile upon which to apply for protection.
Past questioning and threatening at gunpoint: The Tribunal asked the applicant about the occasion he was questioned by the CID in 2008, when he was outside of his home area and told to return there. He said he was questioned, blindfolded and held overnight and released once a priest intervened on his behalf. He explained during the period 2009-2012, he was questioned approximately 10 times. He stated while being questioned he was threatened, choked and had a gun held to his head. The Tribunal put to him being threatened at gun point would be a memorable event, yet he had not raised that claim in his earlier evidence, which caused the Tribunal to have doubts he was so threatened. In reply the applicant claimed he thought he had written that happened in his statement. The Tribunal noted his statement was very detailed, yet there was no claim he was threatened at gunpoint and that the statement is endorsed that it was interpreted to him before he signed it. Moreover, contrary to his evidence at the hearing he mentioned being threatened at gun point during the entry interview, his statutory declaration states in his entry interview he made no reference to being harmed when being questioned by the Sri Lankan authorities. The applicant then said he mentioned being threatened at gunpoint during his entry interview. The Tribunal discussed with him that was not reflected in the entry interview record notes on the department file. He further said he may have forgotten to mention it. But it was true that it happened. He was so fearful at the time he almost confessed to being a member of the LTTE, although he was not a member.
During the resumed hearing, the Tribunal put to the applicant adopting the procedure in s.424AA his not raising in his earlier evidence he was threatened at gunpoint was a reason for the Tribunal to doubt his credibility, which would be part of the reason to affirm the decision. The applicant chose to respond at the hearing commenting perhaps somebody missed it during his interview. The Tribunal sought clarification did he mean he forgot to say he was threatened at gun point during his interview, or an interpreter failed to interpret he has said that. The applicant clarified he may have missed to say it because he had to break-up his narration to allow for interpreting. The Tribunal noted the applicant’s evidence at the first hearing in which he said he had made reference to being threatened at gunpoint during his entry interview. He then said was unsure whether he mentioned being threatened at gunpoint or not at the entry interview. He was only sure about discussing his brother’s membership in the LTTE at the entry interview (discussed further below).
Between the first and second hearing, the migration agent submitted the Tribunal should obtain the electronic recording of the applicant’s entry interview to verify if the applicant did make such a claim, or the Tribunal would fall into error for not undertaking an obvious inquiry. The Tribunal decided not to obtain the recording. It has the entry interview notes before it, which are very detailed. Moreover, the applicant’s own statutory declaration states he did not discuss his being harmed during previous questioning at his entry interview. Even if the recording did indicate the applicant had mentioned during the entry interview his being threatened at gunpoint (and all the other evidence points to his not having done so), that would still not explain why the applicant did not include his being threatened at gun point in his statutory declaration setting out his claims nor during his interview with the delegate.
The Tribunal rejects the applicant was threatened at gun point. It considers had that occurred, it is reasonable to expect the applicant to provide consistent evidence about such a memorable event throughout his application, including in his statutory declaration setting out his claims and his interview with the delegate. The Tribunal is not persuaded by the applicant’s explanation having to break his narration for interpreting meant he may have missed to mention he was threatened at gun point in the past – because that would have had to happen on multiple occasions to explain why there is no such claim reflected in the entry interview notes, his statutory declaration or the interview with the delegate. The Tribunal considers the applicant had fabricated the claim he was threatened at gun point during the hearing in order to exaggerate the risk of harm to him if he returns to Sri Lanka. The Tribunal considers the applicant so fabricating his evidence weighs in favour of the Tribunal finding the applicant was not a credible witness.
Brother’s membership in the LTTE: During the first hearing, the applicant made a new claim his brother was a former member of the LTTE for 3-4 months and underwent rehabilitation by the Sri Lankan authorities. When the Tribunal noted that claim did not appear in his earlier evidence he once more insisted he made that claim during his entry interview. When asked why he did not raise his brother being a member of the LTTE in his statutory declaration setting out his claims for protection, the applicant replied he was not asked that question. The Tribunal put to the applicant it had doubts to accept he had never been asked did he have family members who were members of the LTTE. During the resumed hearing, adopting the procedure in s.424AA, the Tribunal put to the applicant his not raising his brother’s membership in the LTTE during his earlier evidence was a reason for it doubt his credibility. The applicant chose to respond at the hearing commenting he thought maybe he mentioned his brother’s membership of the LTTE when discussing his family during his entry interview.
As noted above, the applicant provided English translations of documents purporting the applicant’s brother was released into the custody of their father after completing rehabilitation. The country information provided by the migration agent and in the DFAT report indicates former members of the LTTE have been put through a process of rehabilitation by the Sri Lankan authorities, including training for job skills. As discussed with the applicant during the hearing too, the DFAT report contains information regarding the prevalence of fraudulent documents in Sri Lanka. The Tribunal considers the applicant not raising any claim his brother was in the LTTE until the Tribunal hearing greatly undermines the credibility of the applicant. The Tribunal places no weight on the rehabilitation documents. It is not persuaded by the applicant’s explanation he was not asked whether he had any family members in the LTTE. It rejects too that he claimed his brother was in the LTTE during his entry interview.
For the same reasons set out above in paragraph [27] the Tribunal has not obtain the electronic recording from the entry interview. It is reasonable to conclude had the applicant made such an important statement during the entry interview, it would have been recorded in the detailed notes to that interview. Particularly as the interview notes indicate the applicant was asked whether he or any members of his family were involved in any political group or organisation and whether he or his family were involved in any activities or protests against the government – to both of which he answered: ‘no’. The Tribunal considers the applicant raising new claims not found in his statutory declaration or raised with the delegate during the interview regarding his brother being a member of the LTTE to be another example of the applicant fabricating evidence with a view to strengthening his claims for protection.
Land confiscation: At the commencement of the first hearing, the applicant provided the Tribunal with new information. He claimed in November 2014, the army arranged a survey of his family land so as to legally obtain the land on a new title. He said he was sure his family had not been offered any compensation the confiscation of their land. At that time, villagers and two Tamil National Alliance politicians conducted a protest, which prevented the survey from being carried out. A few days later, the army assaulted the applicant’s younger brother for failing to sign a register to obtain a fishing pass. The Tribunal put to the applicant country information from DFAT [1] fishing passes are under the control of the navy, The applicant responded their mother told him his brother was assaulted on land, by persons wearing army uniforms. His family land remains occupied by the army, but no other steps had happened since an enlarged, permanent wire fence was erected in November 2014. He explained land of neighbours was taken too. He claimed no compensation was paid to any neighbours either, due to the army declaring it was a high security zone.
[1] DIAC Country Information Service 2012, Country Information Report No. 12/67 – CIS Request Sri Lanka: Questions arising from recent applications, (sourced from DFAT advice of 29 November 2012), 29 November
The Tribunal discussed the news report dated November 2014 he provided about his father and a protest in his home village. The Tribunal queried why the applicant’s father would allow himself to be photographed if his father considered there would be a risk of harm for attending a protest against the army confiscating their family land. The applicant replied the media took the photograph. His father did not undergo an individual interview but rather joined the protest as a group. As noted above, the applicant provided an English translation of the newspaper report after the resumed hearing. At the second hearing he provided the original newspaper too (folio 99: AAT file). The photograph is small and unclear but shows a group of unidentified men in plain clothes standing in front of a building. There is a person in an army uniform on a motorcycle and two people wearing a police uniform. In the view of the Tribunal, it would be very unlikely any person could be positively identified from the photograph. The report states land survey officers attempted to conduct surveys at two locations on behalf of the military. At both locations, protesters prevented the survey being carried out. It further states police and army attended the protests, took photographs and at one location, acted in an intimidating way.
The Tribunal discussed country information [2] regarding there are incidences of the military confiscating land, but that compensation is paid. There is often dissatisfaction about the type of compensation offered, but the country information indicates people protest about that. The Tribunal had doubts regarding the credibility of the applicant’s claims his family were not offered compensation.
[2] >
The migration agent submitted the applicant having made a complaint about the army occupying his family land in the past indicates if he returned to Sri Lanka again, he would likely continue to protest the confiscation of his family’s land, which would put him at risk of harm. The country information regarding the militarization of the north of Sri Lanka supports land confiscation by the military occurs. She referred to a UN report military personnel intimidate people who complain to withdraw their cases against the confiscation of land. The Tribunal noted that country information sets out too that the Sri Lankan authorities have established a special commission to deal with complaints of confiscation of land by the military – which provides lawful opportunity to protest the confiscation of his family land, which he had not undertaken. The applicant responded he feared making a claim to the commission or the courts would inflame the anger of the army towards him. He referred to a Tamil politician taking the land of another Tamil. The Tribunal noted that seemed irrelevant to the applicant’s claims. He explained having possession of the land for a long-time could result in the title changing ownership. The Tribunal noted the existence of the courts and commission seemed contrary to his claim the army could take title of his family land by holding it for a long-time.
The Tribunal does not consider an increase in the numbers of Singhalese or the military being in the north of Sri Lanka is a form of serious harm. The applicant made reference to increased economic competition, discrimination by Singhalese and the fear of harm if participating in protests. The Tribunal noted the applicant’s own evidence of his father participating in protests.
The applicant referred to the support letters he provided from a priest and a parliamentarian. It asked the Tribunal to be mindful he was not recovered from the attempted abduction. He explained the parliamentarian was familiar with his family’s situation regarding the army confiscating his family land. He spoke with the parliamentarian in 2012 at a village meeting. The Tribunal queried why the letter made no mention of the applicant making a complaint to the parliamentarian. He replied the parliamentarian knows about. The Tribunal queried why the applicant made no reference to making a complaint to a politician in his statutory declaration. He replied because he approached the parliamentarian, the parliamentarian issued the letter. He then acknowledged he did not mention that in his statutory declaration. The Tribunal put to the applicant country information from the DFAT report regarding the prevalence of false documents in Sri Lanka. The applicant responded the priest would not write something untrue. The Tribunal noted the letter from the priest makes no reference to a land dispute. The applicant added the letter did mention the abduction attempt.
The Tribunal accepts some of the applicant’s family land has been occupied by the Sri Lankan military. It is plausible this occurred according to the country information the Tribunal put to the applicant and the country information provided by the migration agent. It is willing to give the applicant the benefit of the doubt his father is pictured in the newspaper report he provided at the second hearing. That same country information however is inconsistent with the applicant’s claims his family have received no offers of compensation for the military occupying their land. The Tribunal considers the applicant has fabricated the claim no compensation has been offered to the applicant’s family. It considers therefore too he has fabricated the claim to have had an argument with any military officers about returning the land to his family or that he was prevented from fishing – as a compensation offer would be in play. The Tribunal finds the applicant fabricating his claims regarding his family land weighs in favour of finding the applicant was not a credible witness.
The Tribunal further finds the applicant’s family land and neighbours’ land is being occupied by the Sri Lankan military and being the subject of an offer of compensation does not give rise to a well-founded fear of persecution to the applicant. The Tribunal reaches that finding mindful the applicant’s family may not be satisfied with compensation offer given his father participated in a peaceful protest upon the attempted surveying of the land. The Tribunal accepts the applicant may accompany his father or participate in further protests regarding the level of compensation for the acquisition of their land. It notes the applicant’s father and neighbours were successful in halting the survey from occurring, without incident. The Tribunal is mindful too of the country information regarding instances of intimidation by the Sri Lankan authorities against land owners who complain about their land being occupied. However, the balance of the country information indicates a compensation process has been put in place by the Sri Lankan authorities – which is inconsistent with the Sri Lankan authorities targeting former landowners for harm.
Frequent travel to [Country 1]/[Country 2] and attempted abduction: The applicant travelled multiple occasions to [Country 1] and [Country 2]. In February 2012 he went to [Country 1] and [Country 2], returning to Sri Lanka in June. He went again to [Country 1] the same month, returning to Sri Lanka in July 2012. In November he went to [Country 1] a third time.
He claimed intelligence officers in the airport let him pass because he paid bribes of SLR500-1,000. The Tribunal queried if it was the case the applicant was genuinely considered to be connected to the LTTE, it seemed unlikely for the payment of such a meager bribe he would be free to department. He replied airport intelligence people are less harsh on low level LTTE people. The Tribunal noted in June 2012, he claimed he was taken off a bus by CID for reason they held information the applicant was a former member of the LTTE and had to be rehabilitated, yet, in the days either side of that event he had passed through passport control at the airport without incident. The Tribunal put to the applicant it had doubts the CID would have that claimed information about the applicant’s connection to the LTTE, but that information was either unknown to the airport police, or ignored for payment of a small bribe. He said he did not have problems with the police in Colombo, only in his home area. The Tribunal discussed country information (discussed in more detail below) regarding the Sri Lankan authorities having sophisticated intelligence gather techniques and if the applicant was genuinely suspected of being a member of the LTTE, his name would have been added to a watch list and he would not have been able to exit or re-enter Sri Lanka freely. The applicant replied he did not know about watch lists.
The Tribunal noted that between 2010 (the failed abduction) and 2012 (when he was taken off the bus by the CID), there were no attempts by the Sri Lanka authorities to question or arrest him. The Tribunal noted the applicant suspects the abduction attempt was made by the Sri Lankan authorities. However, were that the case, it is implausible the Sri Lanka authorities would make no further attempt to take him into custody or question him until almost two years later. That suggested there was either no attempt to abduct him in 2010 and this is another occasion the applicant has fabricated his claims, or, the abduction attempt was a random criminal act. The Tribunal rejects the applicant’s explanations he was not arrested between 2010 and 2012 because he was hiding at his parents, the CID would know where to find the applicant at his parents’ home and he further brought himself to the attention of the Sri Lankan authorities on multiple occasions when he travelled though the airport.
The Tribunal is willing to give the applicant the benefit of the doubt that he was the victim of an attempted abduction. It does so on the basis of the country information provided by the migration agent pointing incidences of abductions of young Tamil males in the period during and immediately after the Sri Lankan civil war. However, that country information does not establish to a degree able to satisfy the Tribunal the applicant was targeted for abduction by the Sri Lankan authorities. Rather, the Tribunal finds the applicant escaped being a victim of a random crime. While the Tribunal accepts experiencing an attempted abduction is something which would cause distress to the applicant, being a victim of a random crime is not persecution or significant harm because as it is not for the essential and significant reason of any Convention ground.
The Tribunal further put to the applicant had the CID held information the applicant was a member of the LTTE, it had doubts it was plausible he would be randomly arrested while on a bus, rather than the CID would directly go to his home to find him. Further, the CID would not have released him without charge and on the promise he inform them if he changed address. Rather, he would have been arrested and charged. The applicant replied it is easier for the CID to arrest people on transport when they are alone, rather than at home where neighbours may protest. He replied these were his real experiences and which led him to fear for his safety. The Tribunal is not persuaded by that explanation. The Tribunal considers it implausible the CID would randomly arrest the applicant on a bus if the CID held information the applicant was a member of the LTTE. The Tribunal further considers it implausible if the Sri Lankan authorities had information the applicant was a former member of the LTTE that he would be able to exit and enter Sri Lanka multiple times using his own passport through the airport. The Tribunal rejects the applicant was able to do so because his problem was not with the airport police or because he paid a bribe. The Tribunal finds the applicant was not arrested by the CID on a bus in 2012 and it follows the applicant was not required to sign in monthly after that arrest. The Tribunal considers the applicant has fabricated these claims with a view to creating a profile upon which to apply for protection. The Tribunal further considers his doing so weighs in favour of finding the applicant was not a credible witness.
The Tribunal noted the applicant’s earlier evidence he returned to Sri Lanka on each occasion he went to [Country 1] and [Country 2] because he did not wish to overstay his visas in those countries. The Tribunal put to him his travelling for 5 days in June/July 2012 was not consistent with his claims he was leaving Sri Lanka in fear of his life, because he returned so quickly. He claimed he had only a 5 day special pass for that trip. The Tribunal further noted his earlier evidence the purpose of his visits to [Country 1] and [Country 2] was to buy electronic goods, which he sold on return to Sri Lanka. He told the Tribunal he was given tips by store owners in [Country 1] and [Country 2] for taking customers to them. When people heard he was planning to travel to [Country 1] and [Country 2], they would request he purchase some items for them. He just made a little money to cover his expenses. The Tribunal commented that did not seem to be consistent with someone departing Sri Lanka in fear of their life, but more consistent with his conducting a shopping business. He took orders from people in contemplation of returning to Sri Lanka. He replied he left Sri Lanka to save his life.
For the above reasons, the Tribunal finds the applicant has suffered no serious harm in the past. The Tribunal now assess the applicant’s claims related to future harm if he returns to Sri Lanka.
Furture harm
The applicant claims for the following reasons he will be targeted for harm by the Sri Lankan authorities: he comes from Northern province; he bordered at school; he has made a complaint against the army regarding the confiscation of his family land; his brother was a member of LTTE; he failed to sign in after leaving Sri Lanka; there’s Singhalisation of northern Sri Lanka by the military; he applied for asylum and he departed Sri Lanka illegally.
The Tribunal has rejected above: the applicant has made a complaint against the army; the applicant was required to sign in by the CID and rejected the applicant’s brother was a member of the LTTE. The Tribunal assess the balance of the applicant’s claims as follows:
Young Tamil from Northern province and land dispute.
The Tribunal discussed with the applicant it accepts he is Tamil and as a young man in Northern province it was willing to accept he was frequently questioned by the Sri Lankan authorities about his having any contact with the LTTE. As noted above it accepts too his family home was damaged and his family lived for a period in an IDP camp. These claims are consistent with information in the DFAT reports during and immediately after the Sri Lankan civil war. However, he was always released without charge. Which indicated the Sri Lankan authorities did not consider he was connected to the LTTE. The applicant replied why was he required to sign-in every month and warned not to go anywhere. That started in July 2012. The Tribunal noted that was the time he left Sri Lanka. He replied he left before having to sign the second time.
The applicant explained because he is from Northern province, he will be subject to threats and questioning. The Tribunal noted threats, on their own, may not be so serious as to amount to serious and significant harm. The migration agent submitted threats can amount to serious harm. The Tribunal does not consider the threats [3] the applicant experienced in the past are instances of serious harm when having regard to the non-exhaustive examples of serious harm set out in s.91R(2). The Tribunal has rejected the claims of the applicant he was threatened in the past by the CID regarding the applicant being a member of the LTTE. It rejected too the attempted abduction of the applicant was undertaken by the Sri Lankan authorities. The Tribunal considers there is no real chance of the applicant being threatened in the future arising from either of those claims rejected by the Tribunal. The Tribunal has accepted the applicant was questioned in the past by the Sri Lankan authorities about suspected links to the LTTE but notes these occurred in the context of the Sri Lankan civil war, which ceased in 2009. In relation to the applicant receiving future threats and being questioned because he is from Northern Province, the Tribunal considers these to be examples of Tamils being harassed and discriminated against, which the Tribunal addresses below.
[3] VBAO v MIMIA (2006) 233 CLR 1
The Tribunal discussed with the applicant country information regarding the situation for Tamils. It noted the UNHCR 2012 eligibility guidelines for assessing the protection needs of asylum seekers from Sri Lanka [4] and the UK Upper Tribunal guidance decision of 2013 [5] indicate Tamils are not in need of protection unless they have other characteristics, such as ties to the LTTE. According to the UNHCR a risk factor exists for a Tamil with certain actual or imputed links to the LTTE. The decision of the UK Upper Tribunal, indicates that although the Sri Lankan authorities are described as ‘paranoid’ about an LTTE resurgence, simply because a Tamil has had LTTE connections or sympathies in the past will not now of itself cause the Sri-Lankan government to consider that that person is a destabilising threat. The risk is limited to those who are or are perceived to have a significant role in relation to post-conflict separatism. The Upper Tribunal decision too indicates that the Sri Lankan authorities are aware persons who lived or worked in areas of Sri Lanka previously controlled by the LTTE had some level of involvement with the LTTE during the civil war, but that would not cause the Sri Lankan authorities to consider such a person to be a risk. The Sri Lankan authorities collect and maintain sophisticated intelligence gathering techniques to identify persons with substantial links to the LTTE. The Tribunal therefore having regard to that information does not consider all Tamils would be imputed with a pro-LTTE political opinion just because they are Tamil.
[4] UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, pp.26-37 <
[5] Upper Tribunal (Immigration and Asylum Chamber) United Kingdom Country Guidance Decision in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).
The applicant replied the problems still exist in Sri Lanka for Tamils, they are questioned by the authorities, they have to pass through checkpoints. The Sri Lankan authorities already suspected him as being connected to the LTTE, so he would be targeted for harm. He failed to report monthly to the authorities because he came to Australia.
The Tribunal notes the applicant was never arrested on suspicion of involvement with the LTTE which strongly suggests the Sri Lankan authorities do not consider him to be a threat, even though he travelled through the airport on multiple occasions thus bringing himself to the attention of the Sri Lankan authorities. The Tribunal reminded the applicant he was offering him an opportunity to discuss the country information, not repeat his claims.
Elsewhere in his evidence, the applicant claimed Tamils have no rights and are harassed by the Sri Lankan authorities and Singhalese. The Tribunal addresses his claims that Tamils suffer from discrimination and harassment.
The Tribunal accepts that the independent evidence indicates, at least until the end of the civil war in 2009, that Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities. The Tribunal also accepts that the information indicates that the risk was more prevalent in LTTE dominated Northern and Eastern areas. This is consistent with the applicant’s claims of general discrimination and persecution of Tamils. The independent evidence supports the applicant’s claims that during the civil war many thousands of Tamils disappeared, presumed dead, and thousands of others were killed or injured. The DFAT country report states the situation for Tamils in Sri Lanka has changed significantly since the cessation of the civil war between the Sri Lankan government and LTTE in 2009. However the Tribunal accepts on basis of the country information provided by the migration agent that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. Human Rights Watch has reported that there is evidence of continuing atrocities against some Tamils who were members or supporters of the LTTE. [6] The Bar Human Rights Committee of England and Wales [7] and Amnesty International report on surveillance, intimidation and monitoring of former LTTE members by the security forces. [8] The DFAT thematic report refers to there a high risk of harm to high profile former members of the LTTE. However, while the Tribunal accepts the harassment and discrimination that Tamils may face in Sri Lanka does give rise to some harm as indicated in the country information, the Tribunal is not satisfied when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm.. The Tribunal accepts based on the country information that most Tamils experience some degree of harassment and discrimination. Having considered the applicant’s individual circumstances, the Tribunal is satisfied the applicant faces a remote chance and therefore not a real chance of serious harm because he is a Tamil.
[6] See Human Rights Watch 2014, World Report 2014 – Sri Lanka, 21 January 2013. (Harrison F.2013, ‘Tamils
still being raped and tortured in Sri Lanka, British Broadcasting Corporation, 9 November
[7] Y Sooka, March 2014, ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014” Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s future, ASA
37/011/2014, September, p. 11
On the basis of the country information discussed above, it does not accept the applicant has any profile which would warrant the Sri Lankan authorities to target him for harm. It rejects that the Sri Lankan authorities have been looking for him since he departed Sri Lanka. The Tribunal does not accept he will be imputed with any anti-government or pro-LTTE opinion because of any of the other reasons he has claimed he will be imputed with such a political opinion, including: he is young, a Tamil or because he lived in an LTTE area in the north of Sri Lanka or because he was questioned in the past about connection to the LTTE or because he bordered at school of because he was a fisherman, or because he was the victim of a past attempted abduction, or because of his family’s land dispute. The Tribunal considers there is only a speculative and therefore not a real chance he will suffer serious harm by the Sri Lankan authorities, because of his race, any particular social group or political opinion or any other Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka.
Failed asylum seeker
The applicant has claimed he will be harmed because he applied for asylum in Australia. There are two aspects to the applicant’s claim. That the Sri Lankan authorities will impute him with a pro-LTTE/anti-government political opinion because he applied for asylum and that the Sri Lankan authorities will seek to punish him because they will assume the applicant was critical of them in his claims for asylum.
The Tribunal considers the Convention ground relevant to this claim is an implied political opinion of being against the Sri Lankan authorities due to the applicant’s applying for asylum overseas or his membership of the particular social group of returned failed asylum seekers. Interrelated to this is his race as a Tamil and an implied political opinion of being pro-LTTE because he is a Tamil and/or applied for asylum overseas. Regardless of which Convention reason, the Tribunal considers the issues under consideration are substantially the same.
The Tribunal discussed with the applicant country information that there are reports [9] of some Tamils being questioned, detained and tortured by the Sri Lankan authorities upon return to Sri Lanka as failed asylum seekers, particularly from the UK. Freedom from Torture and Tamils Against Genocide report on returnees with links to the LTTE or the Tamil diaspora being harmed on return by the Sri Lankan authorities. The Tribunal is mindful too of reports such as that of HRW [10] as to the prevalence of the use of torture by the Sri Lankan authorities when questioning or detaining persons. The UK Home Office [11] noted six and the Canadian Immigration Refugee Board [12] four cases of failed asylum seekers being detained upon return, all of whom had criminal charges outstanding in Sri Lanka. The DFAT Country Information Report indicates all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka, the same information is reported by the British [13] Canadians. [14] Thousands of asylum seekers have returned to Sri Lanka since 2009 from Australia, US, Canada, UK and European countries but there are relatively few allegations of mistreatment and the DFAT country information report states many allegations of mistreatment of returnees have not been substantiated. The Tribunal put to the applicant that it did not consider he had a profile as someone with links to the LTTE or the diaspora and that he would not be imputed targeted for harm because he applied for asylum in Australia.
[9]See: Freedom From Torture 2014, Freedom from Torture up-dated submission to the Human Rights Committee for the 5th periodic review of Sri Lanka in October 2014, 1 October <
[10] We will teach you a lesson Sexual Violence by Sri Lankan Security Forces, 26 February 2013, UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March
[12] Immigration and Refugee Board of Canada 2011, Sri Lanka: 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 <
[13] UK Home Office 2012, Sri Lanka: Country of Origin Information Report, 7 March, pp.202-203
[14] Immigration and Refugee Board of Canada 2011, Sri Lanka: 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 <
The applicant stated the Sri Lankan authorities will harm him because they disbelieve he is not a member of the LTTE and he failed to report monthly to the Sri Lankan authorities. The Tribunal again reminded the applicant to take the opportunity to discuss the country information, it was in his best interests not to just repeat his claims. The applicant then added he saw news reports of people who had returned to Sri Lanka were harmed by the Sri Lankan authorities. His applying for asylum in Australia will confirm the suspicion of the Sri Lankan authorities he was a member of the LTTE.
On the basis of the country information set out above, the Tribunal does not accept that all failed asylum seekers are imputed with anti-government or pro LTTE political opinion by the Sri Lankan authorities, regardless whether the returnee is Tamil or not. In making that assessment the Tribunal has had placed weight on the UNHCR guidelines and the Upper Tribunal guidance decision noted above which indicate that while persons with links to the LTTE may be in need of protection, the Sri Lankan authorities rely on sophisticated intelligence gather in identifying persons with such links. The Tribunal has had regard too to the applicant’s low level connections to the LTTE through his schooling (discussed in more detail below), his family’s time in an IDP camp and his being from Northern province. The Tribunal has rejected above the applicant’s claim his brother was a former, rehabilitated member of the LTTE.
After assessing all the evidence and the applicant’s circumstances as a whole, the Tribunal finds that the applicant will not be imputed with an anti-government or pro LTTE political opinion because he will return to Sri Lanka as a person who applied for asylum overseas. In reaching that finding, the Tribunal has given regard to the country information on the return of failed asylum seekers to Sri Lanka and has been mindful of the questioning process and not just the outcome of any questioning the applicant may face from the Sri Lankan authorities as a returnee and is not satisfied that questioning when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm. The Tribunal is not satisfied the applicant has a real chance of serious harm because of an implied political opinion or membership of any particular social group however described arising from the applicant returning to Sri Lanka as a person who applied for asylum in Australia if the applicant returns to Sri Lanka, now or in the reasonably foreseeable future.
Illegal departure from Sri Lanka
The applicant claimed he would be harmed because he departed Sri Lanka illegally. The Tribunal accepts that the applicant departed Sri Lanka without possession of his Sri Lankan passport and not from an approved port. The Tribunal discussed with him his doing so was an offence under the Immigration and Emigration Act of 2006 (“IEA”) for illegal departure from Sri Lanka. [15] It discussed too that according to information from DFAT [16] returnees are generally met either by DFAT or IOM staff at the airport. Since November 2012, all failed asylum seekers returned to Sri Lanka from Australia who had departed Sri Lanka illegally had been arrested upon return to the airport in Colombo. The returnees were then charged with offences relating to illegal departure under the IEA and held on remand until brought before a Magistrate. After a bail hearing, the returnees are granted bail with a personal surety and able to return to their home area. The period on remand varies between a couple of hours to a couple of days, depending on how soon a bail hearing can be held, but there are reports of it taking up to two weeks. [17] The Sri Lankan authorities will investigate the background and identity of each returnee, which can involve contacting the person’s family and the police in their home area. Eventually the returnee will need to return to Court to face the charges. Although the IEA states the penalty for illegal departure is a prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR, the Magistrates are able to use their own discretion in determining the amount of the fine. In practice, Magistrates have been handing out fines between 5,000 LKR and 50,000 LKR. Only returnees suspected of people smuggling offences have been denied bail or given a prison sentence. The most recently available information is the above process is continuing under the new government. [18]
[15] Sections 34, 35 and.45 IEA DFAT Country Information Report: Sri Lanka, 31 July 2013; (CX234989 of 14 October 2009; CX234202 of 29 September 2009; CX 249694, CX297471 of 19 October 2012, CX304258 of 27 February 2013 and DFAT report 1479 of 4 March 2013)
[17] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.
[18] A. Perera, B. Doherty, S. Medhora, ‘Asylum seekers transferred at sea by Australia to face court in Sri Lanka” (20 Feb 2015) >
Again, the Tribunal is mindful it must give regard not only to the outcome of any interrogation or questioning, but also whether there is a chance of harm during the process the process involved in attaining that outcome. [19] The Tribunal considers the offences under the IEA are laws of general application. On the face of the wording of the IEA legislation and the information regarding the implementation of the IEA before the Tribunal, the Tribunal is not satisfied the IEA laws are discriminatory in there terms or enforced in a selective or discriminatory way. The laws apply to all Sri Lankan citizens who depart Sri Lanka in breach of the IEA laws. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.91R(1)(c) and therefore is not persecution. [20] The Tribunal does not accept that his prosecution for breach of Sri Lankan migration laws amounts to persecution.
[19] SZQPA v MIMA [2012] FMCA 123
[20] SZQPA v MIMA [2012] FMCA 123
The applicant stated after he is release from the airport and returns to his village, he may be questioned by the authorities, his freedom will be restricted and he may be harmed when being questioned. He had no comment regarding having to pay any fine, but he will be unable to have a free life. He knows of two Tamils who were assaulted while in prison. He added he left Sri Lanka because he was questioned by the CID in the past and he will be questioned and held again. The Tribunal again reminded the Tribunal it was seeking his comments on the country information. He added if he returns to Sri Lanka, there is no guarantee for his life. He is still anxious from the abduction attempt. He had no other comment as he had no experience and did not know what could happen. He was certain he will be in danger if he returns to his village.
The Tribunal notes the country information that bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. The Tribunal has regard to the decision of the High Court in WZARV [21] that not all detention amount to a threat to a person’s liberty and is an instance of serious harm. The Tribunal accepts that conditions in Sri Lanka’s prisons are poor, they are described so in the DFAT country report. Conditions on remand have been described in media reports [22] as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. [23] The DFAT country report refers to there being unsubstantiated allegations but is unaware of reports of mistreatment of returnees while on remand. However it considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. There have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The Tribunal considers any period the applicant spends on remand is as result of the application of the IEA laws, which the Tribunal found above are laws of general application and any period on remand would be a consequence of those laws of general application and therefore not persecution. [24] Furthermore the Tribunal is not satisfied that due to the short-term nature of the imprisonment on remand that the applicant would face a real chance of serious harm while held on remand.
[21] MIBP v WZAPN, WZARV v MIBP [2015] HCA 22, see also, SZTEQ v MIBP [2015] FCAFC 39
[22]‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, ACAT-France, “When arbitrariness prevails: A study of the phenomenon of torture in Sri Lanka”, (June 2012) see also DFAT country report, HRW op cit, Amnesty International op cit, UKBA op cit, Freedom from Torture. op cit, Canadian IRB op cit.
[24] MZAPO v MIBP [2015] FCCA 96, SZSPT v MIBP [2014] FCA 1245 and SZSRU v MIBP [2014] FCA 1252
The Tribunal considers it not because the applicant is a Tamil or a failed asylum seeker, but rather because the applicant departed Sri Lanka illegally that he will be charged or held or remand or questioned at the airport or further questioned upon return to his home village. The Tribunal is not satisfied that any difficulties the applicant may face as a result of questioning, being charged, encountering cramped and uncomfortable and unsanitary conditions on remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors which apply generally and not specifically to Tamils or failed asylum seekers or persons with imputed political opinions. The Tribunal is not satisfied, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).
There is also the consideration of the applicant facing a jail term for his illegal departure. On the face of the wording of s.45(1)(o) of the IEA states both a fine and a prison sentence are enforced upon conviction for illegal departure. The information from DFAT and the Attorney General Department of Sri Lanka is the Magistrates have discretion to suspend a sentence and that is what is routinely done. This power is found in s.303 of the Code of Criminal Procedure. [25] The Tribunal considers based on the available country information there is only a remote and therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offences under the IEA. The Tribunal considers it high likely the applicant will be fined not more than LKR200,000 (AUD1,850) and more likely to be LKR50,000 (AUD460). [26] The Code of Criminal Procedure provides for allowing time for payment and for the payment of fines by instalments. [27] The evidence before the Tribunal does not suggest the applicant will be unable to pay or that fine or that payment of the fine will cause him hardship. The evidence before the Tribunal too does not suggest he is without any relative able to provide surety. Therefore, the applicant will be able to receive a suspended sentence. As such, the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.
[25] CODE OF CRIMINAL PROCEDURE &path=5[26] (accessed 22 January 2015)
[27] Parliament of the Democratic Socialist Republic of Sri Lanka n.d. [current],‘Code of Criminal Procedure. An Act to Regulate the Procedure of the Criminal Courts’, (2 July 1979) [No.26 of 1981] (amended to Act No.7 of 2006), LawNet. Government of Sri Lanka [Ministry of Justice], Section 291 ‘Provisions as to sentences of fine’ <>
In summary, the Tribunal finds the applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka because: the laws were not persecution due to a lack of discriminatory intent or application and there is no real chance he would face a term of imprisonment for the offence of illegal departure.
After assessing all the evidence and the applicant’s circumstances and being mindful of both the process and the outcome of the prosecution the applicant will face from the Sri Lankan authorities arising from his illegal departure, the Tribunal is satisfied that the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.
Other claims
The applicant claims his boarding at school is a reason he fears to return to Sri Lanka. He said that is a reason he was suspected of being connected to the LTTE. His family lived in an LTTE area, but his school was located in a government controlled area. The Tribunal noted there is no longer any LTTE controlled areas. He added it a reason he may be questioned and will be taken in for rehabilitation. He variously said all Tamils are rehabilitated and that it happens individually. That caused the Tribunal to doubt it was the case the applicant would be rehabilitated. The Tribunal noted the country information it had from the DFAT reports that people were being released from rehabilitation not that new intakes of rehabilitation were being conducted. The migration agent submitted she too was unaware of reports of new intakes of rehabilitation, but that did not necessarily mean it was not happening. The applicant insisted people such as him were being taken into rehabilitation. On the basis of the country information discussed above regarding the Sri Lankan authorities having sophisticated intelligence gathering techniques, the Tribunal is not satisfied the applicant faces a real chance of serious harm because he boarded at school. On the evidence before it, the Tribunal is not satisfied the applicant has a profile which would cause him to be rehabilitated by the Sri Lankan authorities. The applicant’s own evidence is he was never member of the LTTE and the Tribunal has rejected above as not credible his claims the CID had information he was a former member of the LTTE and therefore arrested him on a bus in 2012.
The applicant claims he will be harmed due to Singhalisation and militarisation of northern Sri Lanka. The migration agent provided country information to support that is the case. The DFAT report also contains this information. The applicant explained his home area is all being occupied by the army and used by Singhalese, eventually all his land will be lost. Small business holders are unable to compete with the bigger Singhalese businesses, which are just for the Singhalese. He would be harmed if he protests against that. He referred too to his freedom being restricted. He did not know what might happen to him. The Tribunal considers the forms of harm he related at the hearing are acts of harassment and discrimination against Tamils which the Tribunal has already addressed above. The Tribunal is not satisfied Singhalisation or militarisation of the north of Sri Lanka is any form of serious harm when having regard to the non-exclusive instances of serious harm set out in s.91R(2).
The Tribunal has considered the claims of the applicant individually and cumulatively. The Tribunal is not satisfied the applicant faces a real chance of serious harm by the Sri Lankan authorities due to any of his claimed reasons. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason or combination of reasons, now, or in the reasonably foreseeable future if he returns to Sri Lanka. Therefore he does not satisfy the requirements of s.36(2)(a).
The Tribunal considers his claims further below in relation to complimentary protection.
Real risk of significant harm
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
Abduction
The Tribunal has accepted above there was an attempt to abduct the applicant in the past, the Tribunal considers that was a random event. The Tribunal considers there is only a speculative and therefore not a real risk of the applicant suffering significant harm from being the victim of a second attempt to abduct him if he is removed to Sri Lanka
Discrimination – Militarisation and Singhalisation
The Tribunal accepted above on basis of the country information that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. It accepts too that there is a Militarisation and Singhalisation of the north of Sri Lanka. The Tribunal has had regard to whether that harassment and discrimination amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the harassment of or discrimination towards Tamils involves severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, the harassment and discrimination cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could the harassment or discrimination be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal accepts the harassment and discrimination may cause some humiliation to the applicant, but is not satisfied that the harassment and discrimination would cause extreme humiliation which is unreasonable. Therefore, the Tribunal is not satisfied any harm arising from the harassment or discrimination or Militarisation or Singhalisation of the north of Sri Lanka will amount to significant harm.
Illegal departure
The Tribunal has had regard to whether the harm the applicant may suffer arising from his committing offences under the IEA amounts to significant harm, in particular, being questioned, his bail conditions, being detained for a short period while on remand and imposition of a fine. The Tribunal has had regard to whether that amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s being questioned, bail conditions, detention on remand or fine will involve severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, his being questioned, the bail conditions, detention while on remand and fine cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could his bail conditions, detention while on remand or fine be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that his being questioned, the bail conditions, detention while on remand and fine would cause extreme humiliation which is unreasonable. Moreover, the definitions of ‘cruel or inhuman treatment or punishment’ in s.5(1) requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.[28] The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. Therefore, the Tribunal is not satisfied any harm arising from his being questioned, the bail conditions, being detained while on remand or fined will amount to significant harm.
[28] Compare SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
In relation to the balance of the applicant’s claims, the Tribunal found above the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB.[29] Given the test is the same, for the same reasons set out above in relation to real chance, the Tribunal is not satisfied the applicant has a real risk of significant harm.
[29] [2013] FCAFC 33
The Tribunal therefore considers there are no 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 the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the named applicant does not meet the requirements of s.36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Fraser Syme
Memberfrom Torture 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September < Freedom from Torture 2011, Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka 2009-2011, p.23; Tamils against Genocide, “Returnees at Risk: Detention And Torture in Sri Lanka”, (16 September 2012);
The IEA was amended in 2006 to repeal s.45(6), which previously excluded operation of s.303 of the Code of Criminal Procedure.Key Legal Topics
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