1315946 (Refugee)
[2015] AATA 3139
•6 July 2015
1315946 (Refugee) [2015] AATA 3139 (6 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1315946
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Suzanne Carlton
DATE:6 July 2015
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 06 July 2015 at 2:00pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] September 2013.
The applicant appeared before the Tribunal on 19 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 representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the applicant, a Sri Lankan citizen who is an ethnic Tamil, claims to have suffered persecution because in 2010 his father, then the Grama Niladhari for the village, thwarted the efforts of [Mr A], a local minister, to buy and redevelop the village’s markets. As a consequence of his father’s actions, he was repeatedly threatened and assaulted between 2010 and 2012 by [Mr A]’s bodyguards. He fears serious harm at their hands if he returns.
He further fears the consequences of his illegal departure as a failed asylum seeker who departed illegally.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s protection visa application and the delegate’s decision
In his application for a protection visa the applicant provided the following details:
·He was born in [Village 1, Sri Lanka].
·He is Tamil and Hindu.
·He studied up to [education level].
·He speaks Tamil.
·He has never been married.
·In Sri Lanka, he did not worked. Since being in Australia, he has worked in the lamb processing [factory] and as a book [packer].
He provided to the Department:
·A copy of his Sri Lankan National Identity Card;
·A copy of his Sri Lankan birth certificate.
In his bio-data interview sheet, completed [in] July 2012 in his own hand and in his own language but prior to legal assistance, he stated that the reason he sought Australia’s protection was due to “economic problems back home. Unable to have a decent life” (as translated).
During his entry interview, conducted with the assistance of an interpreter, but without legal assistance, [in] September 2012 he gave a more detailed account of why he left the country:
Why did you leave Sri Lanka?
There’s no protection for me. No guarantee for my life, lots of problems. My father elected as village president and we were conducting festivals in temple. From the temple, we ran a market, there was a Sinhalese minister from the next village, [Mr A], he come to buy the market so he can build a building. My father opposed that. He come and the issue becomes vague and become riots surrounding all the Sinhalese villages. When my father have a cooperation with them, me and my siblings were studying at school. That incident on that dates over, if I go to to wish and is, I have to go to [Town 2]. I have to pass that village. After this incident, I get into the bus, lots of Sinhalese, Minister has influence, they come to trouble me. Since then, the Sinhalese people coming to the bus, hit me, pull my shirt. After that, instead of taking one bus, I took three buses to avoid. 56 months, I was travelling like this that someone they got to know. After that, I report to my father, that unknown people are hitting me and pulling my shirt. That time, my father also, never go outside will stop my father told, it’s going to be a problem for you, he stop me go to the tuitions. I like to study stop my father, [name] he is my friend, he is my guide, for him I study very well. I passed the ordinary level, I studied A-level. If I got good results, even though I stopped tuitions, I play [Sport 3], my father is a [sports] player, I had a vote from the [name] Company. This award was given in Colombo, Bmich. I got the award, and I didn’t like to stay in city, when I travelling to village, that minister I told you before, they stop the bus stop they asked people to get down from down, half the people got down, I was wearing school uniform. After that, the bus go straight but before a village I got down from the bus, those people’s on me. They came in for bikes, they surrounded me. They were under influence of drugs, I started running. You can see the mark on my face (client gestures to [face]). The Sinhalese people start chasing me. I know the area, the jungle. Somehow I reached home, I cried to my mother. No one from my village got any award, my mother was proud of that, she treated me from my wound. After that, I never go out, just to school. Later one occasion, after school, I saw a van. The people who chased me were waiting outside, one boy warned me be careful. I went back, jumped the fence, go through the jungle and reach home. After week, same thing, like 5 times this happened to me. Few times, we report to police and they said it’s not like that. After that, I didn’t go anywhere outside and my father also never go out will stop next were village, a temple we used to go to, after this we couldn’t go there.When did these things happen?
2010.Who were these people?
Sinhalese, after this minister incident, this trouble started, not sure if there are connected to minister.Why you?
Because I used to help my father, I was involved.Are there are any other reasons you left Sri Lanka?
No.He also provided a signed statutory declaration made [in] 2 November 2012 which carried a declaration that the contents had been truly and accurately interpreted to him by a Tamil interpreter. The applicant received legal assistance in the preparation of this document. In relevant part, it stated:
WHY I LEFT THAT COUNTRY, INCLUDING DETAILS OF PRIOR HARM
2009 — Father elected village president
3.In around 2009, my father was elected as the village president. Every year in my village, there is a meeting and they select an honest person to become the village president. My father was selected by the people in my village because of his good reputation. The village president is responsible for organising the formal ceremonies and functions within the village as well as addressing any disputes that may occur between people within the village.
4.In around 2010, a Sinhalese minister from a neighbouring Sinhalese village, known as [Mr A] came to a village and enquired with my father whether he could buy our local market space. My father did not wish to sell the market as it generates a lot of income for the whole village. [Mr A] was unhappy that my father did not want to sell the market and threatened him and then left the village.
5.Later that same day, [Mr A] returned to the village and spoke to my father along with the village secretary and the vice president of the village. My father told me that they were arguing about the market and that [Mr A] did not want to take no for an answer. [Mr A] was trying to pressure my father into selling the market space and I believe that he died that he could influence my father to do this because he is Sinhalese and my father is Tamil. In Sri Lanka, most people are Sinhalese and Tamil is a minority ethnicity. As a Tamil they’ve experienced many situations I have been targeted due to my ethnicity.
Threats from Sinhalese villagers
6.After this incident, in around July 2011, I studied to attend private tuitions classes in [Town 2] will stop I had to travel by bus to tuitions class and I would pass the Sinhalese village where [Mr A] is minister. Sometimes Sinhalese men from the minister’s village would get on the bus. The men would see me and they would come over and threatened me. They knew me as they had come to the village with the minister when he wanted by the market space. I did not understand exactly what they were saying as they were speaking Sinhalese and I can only speak a little Sinhalese. They would grab me by the shirt and dragged me off the bus. Once we were off the bus, around [number] men would surround me and hit me. They were shouting at me but I did not know what they were saying. I could tell that they were threatening me. After they hit me, they would walk away and leave me there stop I try to avoid them by catching different buses but somehow they would find me and hit and threaten me. This happened to me five or six times until I stopped going for Tuition classes in January 2012.
Award in Colombo
7.In around October 2011, I travelled to Colombo to receive an award from the [name] Company for my [Sport 3] ability. I went to Colombo with my friend [name].
8.That night, after the awards ceremony, I was travelling back to my village by myself on the bus. [My friend] had decided to stay in Colombo with his family. I was sitting by a window seat and when the bus went past the Sinhalese village I saw people drinking and they some me on the bus. I got off the [bus] shortly after and wait for a friend was due to pick me up on his bike. While I was waiting at the bus stop, around [number] Sinhalese man came in bikes with sticks and started threatening me. Again they were speaking in Sinhalese soy could not understand what they were saying however there are awaiting the sticks at me and shouting. I was very scared, I ran away from them towards my village. They started chasing me. I was running through the jungle and I knew a shortcut to my village. They continued to chase me however I lost them after a few minutes.
9.I went home and told my mother and father what had happened. They were very upset and started crying asking when is this going to end. I started to cry also as I was very upset at what was happening to me.
10.After this incident, my family and I stopped going outside. We stayed inside the house and if we needed any thing we would ask our neighbours. It is very afraid as a village surrounded by Sinhalese villages and there are many Sinhalese people around. But would only go to school and come back home.
January — June 2012 — White Van
11.In around 2012, I had finished classes for the day and I was leaving school when I saw a white van parked outside the school. I noticed the men sitting inside the van and recognise that they were the same man who had attacked me previously. I was with my friend [name] and he asked me who the men were. I told them about the previous incidents and he agreed that the men looked dangerous. I was very scared so I decided to leave school through a back fence. I cut through a nearby prawn farm on my way home.
12.When I reached home, I told my mother and father about the van. My father left the house and went to the school to see if the van was still there. By the time my father reached the school, the van had left. The same incident occurred about five or six more times, each time after school. This continued right up until the time I fled Sri Lanka.
13.After the second sighting of the weight found, my father and I went to the police station, to report would had been happening to me after school. I describe the men to the police however they said that they could not find the men from the description and there was no other evidence. My father and I did not think that the police believed what we were saying. I did not believe that the police could or would help me because I am Tamil.
14.Given that the police would not help me, I was increasingly scared about what would happen to me if I stayed in Sri Lanka. The harassment and abuse from the Sinhalese man was continuous and I could not see that it would stop any time soon. I did not know what they would do next.
15.In around June 2012, my father made arrangements for me to leave Sri Lanka. I travelled to Negombo on [date] June 2012.
16.I fled Sri Lanka on [date] June 2012.
WHAT I FEAR MAY HAPPEN IF I RETURNED TO THAT COUNTRY
17.If forced to return to Sri Lanka, I fear that it will be abused, detained, torture and/or killed.
WHO I THINK WILL HARM/ MISTREAT ME IF I WAS FORCED TO RETURN TO THAT COUNTRY
18.I will be harmed/mistreated by the Sinhalese.
WHY I THINK I WILL BE HARMED/MISTREATED IF I RETURN TO THAT COUNTRY
19.I fear I will be harmed/mistreated by reason of my race: I am a young Tamil male.
20.I fear I will be harmed/mistreated by reason of my imputed political opinion: my father held unofficial title within my village.
21.I fear I will be harmed/was treated by reason of membership of a particular social group: I have been targeted as a family member of the village president.
22.I also fear significant harm from reasons of my membership to a particular social group: failed Sri Lankan asylum seekers. If I were forced to return to Sri Lanka, it would be detained upon arrival and [questioned] by the Sri Lankan authorities for having departed the country illegally and having sought asylum in a Western country
WHY I THINK THE COUNTRY’S AUTHORITIES WILL NOT PROTECT ME IF I AM FORCED TO GO BACK TO THERE
23.I fear the authorities - they will not protect me. I have sought help from the police before and they did not protect me.
The applicant was interviewed by the Department [in] June 2013 with the assistance of a Tamil-speaking interpreter. Following that interview, the delegate proceeded to make the decision to refuse to grant the visa.
With respect to his father’s previous position as the Grama Niladhari and the applicant’s father’s refusal to sell the market, the delegate noted there was no evidence that the applicant’s father, between 2010 and 2013, had suffered any threats or experienced any further problems because of his refusal to sell the market land. The delegate noted that the applicant’s father stepped down from the role in 2011.
The delegate did not accept that the applicant’s accounts of harassment and assaults on the bus travelling to and from his tuition in [Town 2] were related to the decision of the applicant’s father to not sell the market land. The delegate noted that the applicant was unable to articulate how the aggressors knew who he was and how the applicant knew the aggressor were connected to the minister.
The delegate accepted that the applicant likely experienced the threats and was chased following his trip to Colombo to receive the [Sport 3] award, but again, was not satisfied that this incident had any connection to the decisions the applicant’s father made as Grama Niladhari.
With respect to the school incidents, the delegate did not accept that there were white vans waiting for the applicant at his school, causing him to clandestinely escape to his home. The delegate considered that the accounts as to the white vans were contradictory in a number of respects. These include that in his statement of claims, he said that he saw the white van and recognised the men in the van as his previous attackers. During his interview with the delegate, the applicant said that his friend saw the white van and told him about it. The applicant was clear that he did not see the van itself or those inside of it. In pre-hearing submissions, the applicant sough to clarify that his friend had heard of the other incidents and a description of the attackers, saw the van and warned the applicant. The applicant then clandestinely peeked, recognised the van’s occupants as his previous attackers and fled.
After considering all of the elements in the application, together with the independent material, the delegate found that the applicant did not have a well-founded fear of persecution based on his political opinion or race or membership of a particular social group ‘Young Tamil males’ or ‘A family member of the former Grama Niladhari’.
The delegate also considered the applicant’s claims that as a member of the particular social group of ‘Sri Lankan failed asylum seekers’, he would face persecution upon his return. The delegate was satisfied that the identified group constitutes a particular social group for the purposes of the Convention.
However, the delegate considered the independent information of governmental and non-governmental groups, including the UNHCR, and found that the applicant does not have a well-founded fear of being persecuted by State authorities or pro-government paramilitary groups within the reasonably foreseeable future of his return to Sri Lanka for reason of his membership in a particular social group defined as ‘Sri Lankan failed asylum seekers’.
On the basis of the findings in respect of s.36(2)(a) and finding no evidence to support the claim of serious harm on Convention grounds, the delegate further found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka as the receiving country that there was a real risk of significant harm.
Application for review – written submissions
Prior to the Tribunal hearing, the Tribunal received a submission, dated [in] January 2014 from the applicant’s representative.
The submission referred to several reports on racial violence and failed asylum seekers. It was submitted that there was a real chance of serious harm to the applicant for reasons of his ethnicity, his imputed political opinion, or his membership of any of several different social groups, including ‘young Tamil males’, ‘young Tamils from the North’, ‘Tamils who have spent a substantial time abroad’, ‘Tamils with presumed contact with the LTTE’, as well as those groups previously claimed.
The submission indicated that the applicant’s father had since been attacked.
Finally, the submission referred to several reports on the treatment of failed asylum seekers to Sri Lanka. It was submitted that there was a real chance of serious harm to the applicant for reasons of his membership of that particular social group or alternatively, that, as a necessary and foreseeable consequent of his removal to Sri Lanka, there is a real risk he will suffer significant harm.
Tribunal hearing
At the Tribunal hearing, the applicant appeared with his representative by telephone. I briefly explained the proceedings of the hearing and informed him that it was my practice, after providing him with the opportunity to present his case and answer any questions I may have, that I would grant a brief adjournment after which I would allow the representative to provide any oral submissions and for the applicant to put forward any last issues which he believed the Tribunal should take into account in making its decision.
The applicant reiterated his earlier background claims with the following clarifications.
The applicant added that his father had been directly attacked in September 2013 about a month after the delegate decided to refuse the visa. The details of the attack were that his parents had travelled [to a] temple for a festival. The applicant’s mother was inside the temple but the applicant’s father was parking the auto. The applicant’s father was set upon by thugs and beaten. Bystanders intervened and broke up fight. He was taken to the hospital where his treated for a broken [bone]. His mother escaped and made her way home. The applicant said that his father was attacked by the same men and had recognised them from the applicant’s description, but then sought to clarify that his father knew the attackers to have been [Mr A]’s bodyguards. The applicant said that he is now supporting the family, but when questioned, indicated that he has supported the family since he started working here.
I asked the applicant detailed questions about the incident that appears to have started the conflict between the applicant’s father and [Mr A who] apparently came twice to [Village 1] about this issue, both visits within a few days of each other. The applicant said that the bodyguards knew the applicant because he had come to meet his father on one of those visits.
The applicant said that he did not know who had become the Grama Niladhari after his father, but was certain that the market land has never been sold.
With respect to the harassment and assaults he claims to have suffered on the bus trips between [Village 1 and Town 2], the applicant reiterated his claims, saying that the harassment had occurred on six occasions and he was physically punched on one occasion. He said that he had not suffered ‘serious’ injury from that physical attack.
With respect to the threats of harm that arose when he was on his way back from Colombo, he said that he cut his face when a tree branch hit him as he was running. On that occasion, he was not caught or otherwise harmed by the claimed aggressors.
With respect to the white van outside of his school, the applicant sought to reconcile the variances in the accounts, reiterating the pre-hearing submissions.
I asked the applicant some detailed questions about the attackers and how he would describe them. He said that there were [a number] of them and that they were of “rowdy appearance”. Their physiques were those of tall bodyguards. They were “village people” who “looked like trouble”.
He added that his siblings do not go to school and the family never leaves the house out of fear of attack.
The Tribunal set out concerns to the applicant and provided the applicant and his representative with a brief adjournment to allow for the two to confer with the assistance of the interpreter. When the hearing resumed, both the applicant and the representative responded to the concerns put by the Tribunal.
The Tribunal referred to the inconsistencies or concerns about implausibility set out in the delegate’s decision. The representative reiterated that the applicant had definitely been targeted on the bus trips as no one else was harmed or injured or harassed. With respect to credibility generally, the representative argued that the applicant is relatively young and has lived a relatively sheltered existence with little exposure to authority or bureaucratic processes.
The Tribunal referred to the delegate’s conclusion that there was a low risk of harm the applicant faced upon return due to his father no longer holding the relevant office and the passage of time. The representative argued that the matter had become a personal one to the minister involved and the recent attack (2013) on the applicant’s father was indicative of ongoing risks of harm.
With respect to the Tribunal’s concern about possible relocation within Sri Lanka, the representative asserted that the minister was local to the region but the Sri Lankan authorities have indicated that they are unwilling or unable to protect the applicant, even with his father then in a position of power. IT would be unreasonable to ask the applicant to relocate as he had no family elsewhere, limited work experience and had never lived in other parts of Sri Lanka.
With respect to the Tribunal’s concern about the claim of poor treatment of failed asylum seekers upon their return, the representative asserts that the applicant would receive harsher than the usual treatment because the officials in charge are corrupt and the reason for the applicant’s return would make him a target for harsher punishment. She added that the applicant’s profile is higher than that of other failed Tamil asylum seekers who have been outside the country for a significant period of time because of his father’s previous role as Grama Niladhari.
COUNTRY INFORMATION
The US State Department has provided the following summary of the situation in Sri Lanka in 2013:
The major human rights problems were: attacks on, and harassment of, civil society activists, journalists, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam (LTTE) terrorist organization by individuals allegedly tied to the government, creating an environment of fear and self-censorship; involuntary disappearances and a lack of accountability for thousands who disappeared in previous years; and widespread impunity for a broad range of human rights abuses, particularly torture by police and attacks on media institutions and the judiciary. Disappearances and killings continued to diminish in comparison with the immediate postwar period. Nevertheless, attacks, harassment, and threats by progovernment loyalists against critics of the government were prevalent, contributed to widespread self-censorship by journalists, and diminished democratic activity due to the general failure to prosecute perpetrators.[1]
[1] US State Department, Sri Lanka 2103 Human Right Report, p.1
The report goes on to indicate:
·Discrimination against the ethnic Tamil minority continued;[2]
·There were reports that the government, its agents or its paramilitary allies committed arbitrary or unlawful killings. The number of those killings appeared to decrease from the previous year;[3]
·Enforced and voluntary disappearances continued to be a problem. While no official statistics exist, an incomplete study of open-source media over a seven month period in 2013 showed abductions of at least 17 individuals in 12 events, most of them in Colombo or the Northern or Eastern provinces; [4] and
·There were credible reports that police and security forces tortured and abused citizens. In the Northern and Eastern provinces, ‘military intelligence and other security personal, sometimes allegedly working with paramilitaries, were responsible for the documented and undocumented detention of civilians suspected of LTTE connection. Detention reported was followed by interrogation that sometimes included mistreatment or torture.’[5]
[2] Ibid, p.2
[3] Ibid, pp2-3
[4] Ibid, p.6
[5] Ibid, p.6
The DFAT Country Report on Sri Lanka, current as at 16 February 2015 , to which the Tribunal must have regard, variously states:
[Treatment of Tamils]
Many Tamils, particularly in the north and east, express a fear of monitoring, harassment, arrest and detention by security forces. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA [Prevention of Terrorism Act] than any other ethnic group. This was largely due to LTTE members and supporters almost all being Tamil. However, there were also likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity… There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The new Sirisena government has reportedly asked for a list of all detainees held under the PTA for review, and has said it is willing to work with the International Committee of the Red Cross in providing greater access to detainees and establishing a comprehensive database on detainees.
A number of those intending to leave Sri Lanka and travel to Australia by irregular means surveyed by the Australian National University’s Development Policy Centre, cited persecution and torture as reasons for leaving. This included 37 per cent who said they wanted to leave Sri Lanka because of ‘persecution in Sri Lanka’ and 36 per cent who cited ‘torture in Sri Lanka’. DFAT assesses that these fears are significant ‘push factors’ for external migration.
However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[6]
… [Disappearances]
There also have been credible reports of enforced or involuntary disappearances since the end of the conflict. A total of 126 complaints of disappearances were lodged with the HRCSL [Human Rights Commission of Sri Lanka] in 2012, down from a total of 1,030 in 2008, although some of these complaints have since been resolved.[7]
… [Torture]
In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. Incidents of torture are not confined to any particular ethnic, religious or political group.
Torture may be used to extract information or confessions from suspects. Although evidence obtained by torture is generally inadmissible in courts in Sri Lanka, for those suspects held under the PTA, all confessions obtained at or above the rank of Assistant Superintendent of Police are admissible in court.[8]
[6] DFAT Country Report, Sri Lanka (16 February 2015), paras 3.10-3.12
[7] Ibid, paras 4.7
[8] Ibid, paras 4.17-4.18
The UK Home Office Operational Guidance Note – Sri Lanka dated April 2012 makes the following statement which indicates that Tamils may experience discrimination in accessing government employment and housing:
Both local and Indian-origin Tamils maintained that they suffered long-standing, systematic discrimination in university education, government employment, and other matters controlled by the government. According to the SLHRC [Sri Lanka Human Rights Commission], Tamils also experienced discrimination in housing. Landlords were required to register any Tamil tenants and to report their presence to the police, although in practice many landlords did not comply. Tamils throughout the country, but especially in the conflict-affected north and east, reported frequent harassment of young and middle-age Tamil men by security forces and paramilitary groups.[9]
[9] UK HOME OFFICE 2012, OPERATIONAL GUIDANCE NOTE, APRIL, SECTION 3.6.4
The UNHCR’s July 2010 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’[10] states, in part:
These Guidelines are issued in the context of the improved human rights and security situation following the end of the armed conflict between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) in May 2009, and are intended for the use of UNHCR and State adjudicators in the assessment of claims by Sri Lankan asylum-seekers. They supersede the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka and the subsequent Note on the Applicability of the 2009 Sri Lanka Guidelines. The Guidelines contain information on the particular profiles for which international protection needs may arise in the current context. Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex…”.
[10] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, >
The most recent version of the Guidelines, issued on 21 December 2012 states in part:
UNHCR has carefully analysed the relevant developments in Sri Lanka since the publication of the 2010 Guidelines, as well as newly available information on the conflict period. All claims lodged by asylum-seekers need to be considered on their merits, according to fair and efficient status determination procedures and up-to-date and relevant country of origin information. UNHCR considers that the risks facing individuals with the profiles outlined below require particularly careful examination, and that they are likely to be in need of international refugee protection, depending on the individual circumstances of the case. This listing is not necessarily exhaustive and is based on information available to UNHCR at the time of writing. Therefore, a claim should not automatically be considered as without merit simply because it does not fall within any of the profiles identified below. Certain claims by asylum-seekers from Sri Lanka may require examination for possible exclusion from refugee status.
Recent reports have been published detailing exposure to serious violence directed against people from several of the risk profiles listed below, including in some cases mistreatment amounting to torture.
The psychological and physical consequences of past exposure to such experiences in an environment of past prolonged armed conflict, serious human rights violations and military occupation, needs to be appropriately taken into account in the assessment of a claim[11].
… At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.
However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.[12]
[11] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p25
[12] Ibid p.26-27
The 2012 version of the Guidelines identifies a list of general risk profiles which may give rise to a need for protection. That list is not exhaustive:
(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.[13]
[13] Ibid, p.5
Those Guidelines caution that ethnicity and geographical origin may still have some significance:
Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. Whereas persons belonging to the Sinhalese majority may fall within the risk profiles, generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. Other human rights issues, such as sexual and gender-based violence and violations of housing, land and property rights, also disproportionately affect members of ethnic minorities. In addition to a person’s ethnicity, the place of origin may also be a relevant factor in the assessment of risk.[14]
[14] Ibid p.26
The Tribunal also refers to the 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) which comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers. The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE. It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :
It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant. [15]
…
The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[16]
[15] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325
[16]Ibid, para. 356(3)
The decision lists risk categories of those who are subject to persecution or serious harm, including:
Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[17]
[17] Ibid, para.356(7)(a)
It goes on to state:
The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities a indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[18]
[18] Ibid para.356(8)
In regard to illegal departure and the consequences of return the Tribunal has the following material before it in addition to the applicant and his adviser’s submissions:
DFAT Country report Sri Lanka 3 October 2014 pp.22 and 23; UNHCR Eligibility Guidelines for assessing the international protection needs of asylum seekers from Sri Lanka; Amnesty International Report: The UK Home Office Country Information and Guidance Sri Lanka: Tamil Separatism 28 August 2014: Freedom from Torture Report 13 September 2013. An ABC report of a Tamil asylum seeker in Australia and an article from the Sydney Morning Herald of 30 September 2014 ‘The Nightmare of returning to Sri Lanka’.
The UK Country of Origin Report advises:
The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a)Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka.
(b)Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c)Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d)A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant.
This is broadly consistent with UNHCR information which advises that persons with certain profiles may be in need of protection, as set out in paragraph 62. above.
Of failed asylum seekers, that report advises:
In 2011, a total of 1,728 refugees returned to Sri Lanka through the facilitated voluntary repatriation programme from India, which is supported by the Governments of India and Sri Lanka and facilitated by UNHCR. This was a decline compared to the previous year, when some 2,054 individuals returned. A commercial ferry service from Tamil Nadu to Colombo raised additional interest in voluntary repatriation in late 2011, but the ferry was later discontinued due to commercial disputes. Also in 2011, a handful of refugees returned voluntarily with UNHCR assistance from other countries of asylum, specifically Malaysia, Georgia and St. Lucia. In addition, some 634 refugees, who returned on their own, registered with UNHCR field offices in 2011.
The interest of Sri Lankan refugees in voluntarily repatriating continued to decline in 2012, with fewer than 1300 individuals returning to the country through UNHCR’s facilitated return program from January to mid December 2012. As in prior years, most refugee returnees came from India, but a small number returned from Malaysia, Hong Kong and Cambodia. In addition, the number of spontaneous refugee returnees who approached UNHCR in field locations has reduced by half compared to 2011.
… All returnees under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations.
UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return. 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.
In addition, IOM runs in a number of countries an “assisted voluntary return” (AVR) programme primarily intended for stranded migrants, which has been accessed by some Sri Lankan former asylum-seekers whose cases had been rejected in last instance, as well as by some who had abandoned their asylum claims. In 2011, 179 Sri Lankans reportedly returned under the AVR programme, substantially less than the 389 Sri Lankans returning with IOM support in 2010.
Some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka. There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.
DFAT advice of July 2013 is as follows:
3.1Sri Lankans are able to re-enter the country on temporary travel documents if they do not have their passport. However, Sri Lankan citizens exiting Sri Lanka can only do so with a passport and visa (if required) and are not able to depart on a temporary travel document. If a returnee has committed an offence under Sri Lankan law, they will be investigated and prosecuted for the offence.
3.2DFAT assesses that Sri Lankans returnees are treated along standard procedures applying to all Sri Lankans, regardless of their ethnicity and religion. DFAT has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.
3.3Upon arrival in Sri Lanka, authorised officers check passport/travel document and visa information against the Department of Immigration and Emigration (DoIE) immigration database. Under Sri Lanka’s Immigrants and Emigrants Act (the I&E Act), it is an offence to depart other than via an official port of entry/exit (such as a seaport or airport) and without a passport. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can also be charged with an offence under Section 45C of the I&E Act for organising or attempting to organise for another person to leave in contravention of the I&E Act. The I&E Act empowers authorised officers to detain and examine any person arriving in or leaving Sri Lanka and to require the production of any documents by such a person.
Application of the law in practice
3.4Returnees 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.
3.5Returnees 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.
3.6For 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.
3.7Some returnees have been charged with people smuggling offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to robbery of a vessel used to travel to Australia, causing grievous harm to persons and people smuggling.
3.8For offences committed under the I&E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable. The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.
3.9Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity. The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.
3.10The two main NGOs involved in facilitating voluntary returns have told DFAT that they have not witnessed any differentiation in treatment by authorities towards returnees from Tamil Nadu, India, in comparison to other returnees.
3.11Sri Lankan asylum seekers and refugees who return to Sri Lanka through the UN High Commissioner for Refugees facilitated voluntary repatriation program are processed through DoIE and SIS on return to Sri Lanka but not CID. This process is the same for all persons returned regardless of the country from which they are being returned or when they departed Sri Lanka.
3.12In practice, where a returnee is travelling voluntarily on their own passport on a commercial flight they will not come to the attention of local authorities if they departed Sri Lanka regularly (legally through the airport/seaport) on the same passport, as they have not committed any offence under the I&E Act.
The most recent DFAT report on Sri Lanka is that of 16 February 2015 and it advises:
Internal relocation options can be limited by the absence of family connections or by a lack of financial resources. Many returnees have reported difficulties in accessing basic necessities such as shelter, food, water and sanitation and rebuilding livelihoods. The continued occupation of private lands by the military, difficulties establishing title to land ownership or uncleared land mines or unexploded ordinance can also complicate successful internal relocation, particularly in the north.
Because Sri Lankan security forces maintain effective control throughout Sri Lanka, it is unlikely that individuals will be able to relocate internally with any degree of anonymity. In particular, the Sri Lankan military, intelligence and police maintain a high level of awareness of returned IDPs to the north and east. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil IDPs who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the police Criminal Intelligence Division (CID) for interviews. It is too early to assess whether this will change under the Sirisena government.
The UNHCR’s December 2012 Eligibility Guidelines for Sri Lanka state that ‘an internal flight or relocation alternative is not available in Sri Lanka in cases where the feared persecution emanates from the state itself or elements associated with it’. Sri Lankan authorities retain comprehensive country-wide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences. Although individuals will generally not be able to avoid adverse attention from security forces in these more serious cases, DFAT assesses that individuals do generally have the ability to relocate internally to minimise monitoring or harassment by local-level officials for petty issues, subject to the limitations outlined … above.
Treatment of Returnees
Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).
Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.
Exit and Entry Procedures
Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often 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 and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
Offences under the Immigrants and Emigrants Act
Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.
DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.
DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Reference
The applicant entered Australia from Sri Lanka and provided evidence of his Sri Lankan citizenship. Having considered the material on the applicant’s files, I find that the applicant is a citizen and national of Sri Lanka.
I am also satisfied that he does not have enforceable rights to enter and reside in any other country.
This being the case, I find that Sri Lanka is the country of reference in this matter.
The Applicant’s Claims
In relation to his claims of past persecution and why he left his country, the applicant’s claims have progressed, been expanded upon and developed. In the biodata form the applicant completed in his own hand and his own language [in] July 2012, he indicated that he left Sri Lanka and sought the protection of Australia because of “economic problems back home” and because he was “unable to have a decent life” in Sri Lanka.
At the entry interview, two months later, he mentioned as his reasons for seeking protection, that his father had been the Grama Niladhari, had refused to sell the market to [Mr A] and that there were riots in the surrounding villages.
He also mentioned being hassled while travelling to [Town 2] by bus, as well as the incident involving the trip to Colombo. Finally, he mentioned that people waited for him outside his school.
These claims were developed and expanded upon in the applicant’s Statement of Claims, as well as in his interview.
Following the delegate’s decision to refuse the visa, the applicant advised that his family had suffered further attacks, being the temple incident in 2013.
While I am conscious not to put too much weight on biodata or entry interviews, the expansion of the claims from that declared in the biodata interview, leads me to question the claims presented. In doing so, I note that there has been no objective evidence presented relating to the claim that the applicant’s father was the Grama Niladhari for the village between 2009 and 2011, nor was I able to find reference to that in my own research, including looking up the Grama Niladhari page and researching the applicant’s father’s name. I would have thought that this claim would be reasonably easy to corroborate were it true.
I further question this claim in light of the applicant’s lack of knowledge about who became the Grama Niladhari after that. I find this particularly of concern given that the core of the applicant’s claims appear to surround his father’s decision as Grama Niladhari to refuse to sell the market land for redevelopment and that no other Grama Niladhari since has permitted the development. Nevertheless, the applicant has claimed that the minister’s objection to his father is personal to his father rather than to the office.
Further, there was no reportage found in relation to the market redevelopment and the ‘riots’ of the neighbouring villages.
I accept that the applicant was largely consistent in his account of the harassment and threats he faced on the bus on the way to and from [Town 2], as well as on the trip home from Colombo.
With respect to the school incident, there was considerable variance in the details of the account and it is not clear that the applicant’s school friends would have been able to identify the occupants of the white van based on the applicant’s description.
With respect to the attack on the applicant’s father, I note that the attack only occurred after the delegate refused the visa and pointed out that there had been no threats of harm to the applicant or his family since 2011-12. The account given makes me query why the minister or his bodyguards would target the applicant but not his father between 2010 and 2013 and only attack the father in 2013. No clear explanation of this was provided.
I accept that the applicant likely suffered harassment while on the bus, as described, at that it was likely at the hands of Sinhalese and based on both the applicant’s ethnicity and his efforts to complete A levels and become better educated.
I do not accept on the evidence before me that the applicant’s father was the Grama Niladhari for the village and I do not accept that the applicant was targeted based on his father’s refusal to sell the market land.
My own research indicates that the minister mentioned is a bad actor and quite capable of the acts or intimidation claimed, but his reputation as a bad actor would have been known to the applicant, as well as to the general public. I do not accept that the minister and his bodyguards were behind the harassment of the applicant.
The applicant has said that his father was hospitalised. In light of the father’s claimed former political office and in light that the applicant was in the midst of seeking protection, I would have expected some evidence of the attack or the hospitalisation. No corroborating evidence was provided.
As I do not accept that the actual refusal of the market sale occurred, I do not accept that the applicant was harassed and targeted based on his father’s actions. Nor do I accept that his father was targeted. It follows that I do not accept that the applicant faces a real chance of persecution at the hands of the minister or his bodyguards in the reasonably foreseeable future.
I do accept that as a young Tamil male, he faces some discrimination and harassment as set out in the country information. The country information set out above indicates a relatively improved situation for Tamils since the ending of the war in 2009 with the UNHCR stating that there was no longer a presumption of eligibility for Tamils. DFAT have stated that monitoring and harassment of Tamils in day to day life has eased relative to the end of the conflict.
I have considered the country information reports referred to by the applicant’s representative but I have given substantial and greater weight to the assessment by the UNHCR in its eligibility guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka. I have also given weight to the information from DFAT as it is recent and because it is an authoritative source and they have been specifically charged with the provision of such information to the Australian government.
I accept that the applicant would be returning to Sri Lanka as a failed asylum seeker. As I put to him, the information available from, among others, the Australian Department of Foreign Affairs and Trade indicates that non-voluntary returnees are interviewed at the airport by various government departments and that a representative of the Australian Government is present at the airport for the arrival of non-voluntary returnees. The Department of Foreign Affairs and Trade has said that failed asylum seekers are not treated differently from other returnees and that allegations of mistreatment of returnees have not been substantiated.
I also accept that the applicant would be charged with offences under the Immigration and Emigration Act of Sri Lanka relating to his illegal departure from Sri Lanka. The information available to me indicates that the most likely penalty is a fine unless a person is considered to be an organiser of irregular migration of people from Sri Lanka.[19] The information available to me suggests that the applicant will be remanded in custody when he returns to Sri Lanka and that he may spend up to a fortnight in jail on remand.[20]
[19] DFAT, ‘Sri Lanka: RRT Country Information Request - LKA40999’, 19 October 2012, CX297471; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT, ‘Sri Lanka: RRT Country Information Request - LKA41452’, 27 February 2013, CX304258; DFAT, ‘Sri Lanka: RRT Country Information Request - LKA41452’, 1 March 2013, CX306710; DFAT Country Information Report in relation to Sri Lanka (31 July 2013) paragraphs 3.73, 3.75, 3.77-3.79.
[20] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.
I do not accept that there is a real chance that the applicant will be mistreated for reasons of his political opinion or membership of a particular social group if he returns to Sri Lanka now or in the reasonably foreseeable future. I do not accept that there is a real chance that he will be persecuted because he will be returning to Sri Lanka as a failed asylum seeker who left Sri Lanka unlawfully.
Having considered the applicant’s claims in their totality I find that they do not meet the criteria of s.36(2)(a) and he is not a refugee.
COMPLEMENTARY PROTECTION
I have considered the applicant’s claims in full as discussed above and, just as I find he does not face a real chance of serious harm as a consequence of illegal departure, neither do I find that there is a real risk of significant harm.
100. As discussed above I find that the applicant will face checks and will appear before a magistrate charged with having departed the country illegally in breach of a law of general application.
101. The process of appearing at the magistrate’s court may result in a period of detention of up to two weeks on remand.
102. The situation of prisons in Sri Lanka and many other countries in that region will be less sanitary, more crowded and with less services than would be available in Australia.
103. However, the evidence before me leads me to conclude that any hardship for that brief period is not as a result of intent or discrimination.
104. Section 36 (2A) of the Act describes significant harm as follows:
A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
105. The evidence before me leads me to find that he is not at risk of being deprived of his life, suffering torture or subjected to either cruel or inhuman treatment or subjected to degrading treatment or punishment.
106. I find that the purpose of the detention is solely for the purpose of administering a law of general application, without intent to harm and without any disproportionate penalty.
107. While it is possible that he could be held on remand for up to two weeks, having considered the evidence before me I am satisfied that the harm he faces as a consequence is not of such gravitas as to constitute significant harm.
108. Having considered all aspects of the applicant’s circumstances in Sri Lanka I find there are not substantial grounds for me to believe that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka as the receiving country there is a real risk of significant harm.
109. 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).
110. 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).
111. 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
112. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Suzanne Carlton
Member
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