1318771 (Refugee)

[2016] AATA 3365

1318771 (Refugee) [2016] AATA 3365 (18 February 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1318771

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rea Hearn Mackinnon

DATE:18 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2016 at 2:11pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 9 June 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issue in this case is whether the applicant will be harmed on return to Sri Lanka because of his race or an imputed association with the Liberation Tigers of Tamil Eelam (LTTE) or as a failed asylum seeker. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

11. The applicant provided a copy of a Sri Lankan passport in the [applicant’s name] issued in 2005 and a Sri Lankan ID card. The Tribunal accepts he is a national of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality and his receiving country.

    Background

12. The applicant claims, and the Tribunal accepts, that he was born [in] Jaffna on [date] and moved to [Town 1] in Jaffna in 1990.  He stated that his mother has property in [their hometown] but it is within the high security zone and occupied by the Army.  [Town 1] is his father’s home town. He had [a number of siblings] but one [sibling] was killed by shrapnel in 1990 and [one sibling] died of natural causes in 2001. He worked as a fisherman with his father, on his father’s boat until 1994 then on his own boat until 2012. He also worked casually unloading ships in [Town 1]. Ships came in every month and he worked for between two weeks or a month. His father took out his boat when was unloading the ships. His three brothers are also fishermen with their own boats. They live in different villages in the [Town 1] area. He married in 1999 and has[children]. He is of Tamil ethnicity and Hindu religion.

    Claims

    LTTE association

13. He claims that he and his family were displaced to Vanni in 2006 when the ceasefire broke down. In his written statement of 13 December 2012, he indicated that he was in Vanni for three months however he told the Tribunal he was there for 10 days in an IDP camp along with many other people who had fled Jaffna.  He claims that he was questioned by the Army when he returned to [Town 1] about whether he had had any contact with the LTTE in Vanni or had received any training. He told the Army that he had not had any contact and the Army told him they would call him if they had any suspicions. The Tribunal accepts that the applicant was displaced to Vanni during 2006 and that he was questioned by the Army on his return to [Town 1]. Based on his evidence above, the Tribunal is satisfied that the applicant was not suspected of being involved with the LTTE when he returned to [Town 1].  

14. The applicant claims that, a few months before the end of the conflict in March 2009, he went to obtain a fishing pass and the Navy kept his ID and told him to report to the Army camp in [town 2] to get it back. He claims that he went to the camp and the Army returned his ID and told him he had to report at the camp every Sunday. He stated in his written statement that the Army also told him that he was suspected of being an LTTE member and not to leave the country. He told the Tribunal that when he went to the camp, he would have to wait for a long time. Sometimes he just signed and left but sometimes the soldiers were drunk and harassed him and they hit him 10 or 15 times. The applicant claims that he continued to report every Sunday for three years until he left Sri Lanka and that he left Sri Lanka because he was afraid he would be kidnaped or shot.

15. The applicant told the Tribunal that his brothers were not required to report because they were a bit older than him when they went to Vanni. The applicant confirmed his claim to be that he was suspected of being involved with the LTTE and placed on reporting conditions in 2009 because he had gone to Vanni in 2006.  The Tribunal noted that he had only been in Vanni for ten days as part of a large scale displacement from Jaffna.  The applicant stated that he and many other people were put on reporting conditions during the last stages of the conflict and that many people who had to report are now missing.  He stated that two people from his village had to report and two other people were shot and killed by the Army in 2009. The applicant confirmed that he was not detained at the end of the conflict.

16. The Tamil population was screened for links to the LTTE at the end of the conflict in 2009. About 11,000 suspected LTTE operatives and supporters were detained at that time[1] and any association with the LTTE was reportedly grounds for arrest.[2] The Tribunal accepts that the applicant and other young men in [Town 1] were screened and monitored and may have been placed on reporting conditions at the end of the conflict and for a period of time afterwards.  The Tribunal does not accept that the applicant was questioned or made to report because he was suspected of being involved with the LTTE because he had spent 10 days in Vanni in 2006.  The Tribunal does not accept that the applicant was suspected of being involved with the LTTE in 2006 or in the three years that followed or in 2009. The Tribunal is satisfied that the applicant would have been detained in 2009 if he was suspected of any LTTE involvement.

    [1] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

    [2] DFAT, 2014, DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam, 3 October

17. The Tribunal does not accept that the applicant reported to the Army camp every week until he left Sri Lanka. The Tribunal accepts that the Army has monitored the Tamil population in the north for any signs of a re-emergence of the LTTE. By mid-2012, however, most of the suspected LTTE associates who had been detained in 2009 were regarded as “rehabilitated” and released[3] and the Tribunal does not accept that the applicant, who had no involvement with the LTTE, would have been required to continue to report every week for three or more years.

    [3] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

18. The applicant has submitted that he also fears harm from paramilitary groups because of an imputed association with the LTTE. As the Tribunal does not accept that the applicant was imputed to have an LTTE association, it does not accept that he is at risk of harm from pro-government paramilitary groups.

19. The applicant claims that two Sinhalese speaking men from the intelligence services came to his home and asked for his whereabouts within two months after he left Sri Lanka. The Tribunal noted that the Central Intelligence Division of the police (CID) have visited the homes of people they suspect departed Sri Lanka illegally. The applicant said the visit was related to the reporting and that many people from his village came to Australia and their families have not been visited. The Tribunal does not accept that the CID visited the applicant’s home because of anything to do with the reporting. The Tribunal does not accept that the applicant was still reporting to the Army in 2012. The Tribunal is aware that the authorities have interviewed the families of persons suspected of departing Sri Lanka illegally and is satisfied that the visits were in relation to the applicant’s illegal departure not an imputed LTTE association. It is an offence to leave Sri Lanka irregularly and there will be ramifications for the applicant on return which are discussed below.

    
    
    Tamil fisherman

20. The applicant worked as a fisherman in [Town 1]. He has stated that he had to obtain a pass from the Navy each time he went fishing. He told the Tribunal that sometimes, if he went into restricted waters whilst fishing, the Navy beat him and, if he did not get back to shore before nightfall, the Army beat him. He claims that that this treatment occurred during the conflict and until he left Sri Lanka.

21. The Tribunal accepts that the applicant had to obtain a pass from the Navy to fish during the conflict and for some time afterwards; and that he may have been mistreated by the Navy or the Army if he strayed into a security zone or failed to return before the night time curfew. However, country information discussed with the applicant indicates that the Department of Fisheries became responsible for issuing annual fishing licences to boat owners after the end of the conflict;[4] and that most of the restrictions on fishing in the north and the east have been lifted with only zones close to military installations still closed to Tamils.[5]

    [4] 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 2012

    [5] International Crisis Group, 2012, Sri Lanka’s North 1: The Denial of Minority Rights, Crisis Group Asia Report No 129, 16 March

22. The applicant stated that this might be the view from outside Sri Lanka but it is false and there is no change. The Tribunal does not accept this submission and places weight on the country information. Given that the Navy is no longer involved in issuing fishing permits and given that most of the fishing restrictions in the north have now been lifted, the Tribunal finds that the applicant can resume fishing in [Town 1] without a real chance or a real risk of being beaten by the Army or the Navy.

    Tamil race

23. When asked if he feared any harm because of his Tamil race, the applicant said that the sole reason he left Sri Lanka is because of the threat to his life arising from having to report to the Army every Sunday. That claim has been considered above. The applicant’s representative has made submissions on the treatment of Tamils however including reference to the February 2015 Department of Foreign Affairs and Trade (DFAT) country report on Sri Lanka which states that there have been credible reports of enforced or voluntary disappearances and torture in Sri Lanka since the end of the conflict.[6]

    [6] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February; reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

24. The Tribunal notes other country information that the security situation in Sri Lanka is much improved since 2009. The UNHCR advised in 2012 that Tamils from the north are no longer presumed to be in need of protection and set out a list of profiles which might give rise to harm including persons with links to the LTTE such as persons who held senior positions; former combatants; supporters who had undergone military training and were involved in sheltering or transporting personnel and goods; fundraisers and propaganda activists; and family members of the above.[7] The Tribunal is satisfied that the applicant does not fall within any of these profiles. DFAT, in the report referred to above and in a more recent report, also noted that the monitoring and harassment of Tamils in the north has eased since the end of the conflict; that fewer Tamils are being detained under the Prevention of Terrorism Act; and that the forced registration of Tamils has ceased, all of which indicates an easing of the monitoring which occurred during the conflict sand in the immediate aftermath. Further, President Siresena has appointed a civilian governor in the north to reduce the role of the military in civilian affairs and has established a Special Presidential Taskforce on Reconciliation to “heal the wounds of mistrust and social and cultural stress generated from extended conflicts and violence between different communities in Sri Lanka”; and the Tamil National Alliance holds the majority of seats in the Northern Provincial Council. [8] In view of this changed and seemingly improved situation in the north, the Tribunal is satisfied that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his race.

    Returnee/failed asylum seeker

    [7] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

    [8] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February, reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

25. When asked if he fears any harm because he left Sri Lanka and came to Australia, the applicant stated that his life will be in danger because the Army told him not to leave the country and because the Army’s suspicion that he was involved with the LTTE will be confirmed by his departure. He stated that the Army have his details and he will have problems at the airport on return.  The applicant’s representative made submissions on mistreatment of returnees.

    5.24.1Upon 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.

    5.24.2During 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.

    5.24.3For 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.[9]

    [9] Ibid

26. DFAT advised in 2012 that:

    R.2. Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

    We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamils Sri Lankans they have facilitated.

    We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report "Sri Lankan Tamils tortured on return from the UK" [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:

    "We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture"

    "On 16 August FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UKBA have written to them since and received no response" and are due to meet Freedom from Torture again in November”.

    We are also aware of a story on Tamil Net [CX299934] claiming a Tamil British national visiting Sri Lanka was detained by the CID in Colombo from 3 to 9 October and "allegedly tortured under suspicion of LTTE links". The article claims the person was released after a ransom was paid to CID. AFP at post has followed up on the claim with the Sri Lanka Police CID (including with the officer named in the story) who have categorically denied the allegation.[10]

    [10] CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012

1. DFAT has advised that it is aware of a small number of allegations of torture or mistreatment by returnees and that verifying these allegations is difficult because they have been made anonymously and to third parties. DFAT has also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment and “assesses the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act”.[11]

   [11] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February, reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

2. For the reasons set out above, the Tribunal does not accept that the applicant has been imputed with an LTTE association or that the CID wants to question him in relation to suspected LTTE activity. It therefore does not accept that the Army told him not to leave Sri Lanka or that the authorities will view his departure from Sri Lanka as confirmation of an LTTE association. The Tribunal is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures as outlined above by DFAT. The Tribunal does not accept that this questioning and procedure amounts to serious or significant harm. The Tribunal places weight on the DFAT advice above that there have not been reports of mistreatment of returnees from Australia. LandInfo also concluded in 2012 that there is nothing to indicate that returning Tamils are treated in any particular way or are at risk of violations.[12]

   [12] LandInfo, 2012, Sri Lanka: Human rights and security issues concerning the Tamil population in Colombo and the Northern Province, 7 December

3. The Tribunal does not accept that the applicant will be imputed with an LTTE association because he applied for asylum in Australia or that he will suffer any harm as a result. More than a thousand failed asylum seekers have been returned to Sri Lanka from Australia since 2012 and the country information before the Tribunal does not indicate that they have suffered any harm on return because they applied for asylum in Australia.[13]

   [13] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February; reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

4. The Tribunal does not accept that there is a real chance or a real risk that the applicant will be harmed at the airport or on return to [Town 1].

   Illegal departure

5. The applicant left Sri Lanka illegally to travel to Australia. He told the Tribunal that he has not thought about the consequences of illegal departure.  Illegal departure from Sri Lanka is an offence under the Immigrants and Emigrants Act 1945 and DFAT has advised that persons who have departed Sri Lanka irregularly, by boat, are being charged under that Act. Information about this provision and the treatment of returnees who departed Sri Lanka illegally was discussed with the applicant.

6. Whilst the Act provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction[14] and the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, has informed DFAT 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 have been fined as a deterrent towards joining boat ventures in the future.[15] 

   [14] Code of Criminal Procedure Act (No 15 of 1979), ss. 303, 306, See also Immigrants and Emigrants (Amendment) Act No 31 of 2006, s.2

   [15] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

7. DFAT has advised that, following arrest at the airport, returnees are taken before the Magistrates Court at the first opportunity but may be held in custody for a few hours or a few days at the Airport CID office or a prison. DFAT advised in its most recent report that persons who plead guilty when brought before the court are fined and released and that the fine can be paid in instalments.  Those who plead not guilty when brought before the court are granted bail on a personal surety or with a family member as guarantor. The amount of fine is discretionary.[16] DFAT has previously advised that the fines range from around 5,000 Sri Lankan Rupees to around 50,000 Sri Lankan Rupees.[17]

   [16] Ibid

   [17] Ibid

8. The advice from DFAT above indicates that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason.  The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is a law of general application and does not give rise to persecution under the Refugees Convention.

9. The Tribunal is satisfied that the applicant will be held in remand for a short period, between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The applicant’s mother, brother and sister are present in Sri Lanka to guarantee his bail. The evidence before the Tribunal does not indicate that they would not guarantee his bail and the Tribunal is satisfied they would do so.

10. The Tribunal has considered whether the applicant faces a real chance of serious harm for a Convention reason whilst in custody for a short period of time pending bail. There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. In 2012, Freedom from Torture reported that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”.[18] For the reasons set out above, the Tribunal does not accept that the applicant will be perceived to have an association with the LTTE which would cause him to be targeted whilst in custody. The evidence before the Tribunal does not indicate that Tamil returnees who have been charged with illegal departure and remanded in custody have been tortured or suffered serious harm whilst on remand and the Tribunal does not accept that the applicant faces a real chance of serious harm whilst on remand.

    [18] Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September

11. The Tribunal has considered whether there is a real risk the applicant will suffer significant harm whilst in prison on remand for a short period of time.

12. Torture is defined in the Act an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person to obtain information or a confession, to punish, to intimidate or coerce, or for a discriminatory reason. As stated above, Tamil prisoners with an actual or perceived link to the LTTE may be at risk of torture in prison but the Tribunal has found for the reasons set out above that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been tortured whilst on remand.

13. In 2015, DFAT advised that, “in general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions”.[19] Other country reports also indicate that prison conditions in Sri Lanka do not meet international standards because of overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.[20] The UK Home Office has noted that prison conditions in Sri Lanka are likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”[21] and the US Department of State, citing an assessment by a former UN Special Rapporteur on Torture, has also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.[22] PAM 3 also sets out circumstances which have been found to constitute a breach of Article 7 of the International Covenant on Civil and Political Rights.

    [19] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February

    [20] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1; UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March

    [21] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9.11

    [22] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1

14. Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[23] Former President Rajapaksa “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[24]

    [23] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1

    [24] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March; US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1 

15. The Tribunal accepts that prison conditions in Sri Lanka are poor and do not meet international standards. The applicant will be remanded for a short period of time, between one and several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman in nature or an act or omission which is intended to cause extreme humiliation which is unreasonable.

16. Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.  Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not give rise to significant harm under Australian law.

17. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds, for the reasons set out above, that there are not substantial grounds for believing there is a real risk the applicant will be arbitrarily deprived of his life whilst on remand and the death penalty does not arise on the facts.

18. The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm.  The country information above indicates that the penalty which will be imposed on the applicant is a fine. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

19. The fine likely to be imposed on the applicant is between 5,000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between about $51AUD and $511AUD. The applicant is a young man who has been self-employed in the past experience and the Tribunal is satisfied that he will be able to resume his employment and pay a fine on return to Sri Lanka. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm.

    Refugee Assessment

20. Having regard to all the circumstances and findings above, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future from the Sri Lankan authorities or the EPDP because of his race, religion or imputed link with the LTTE, because he applied for asylum in Australia or because he left Sri Lanka illegally. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Sri Lanka because of his race or religion or imputed political opinion or as a member of a particular social group of Tamil returnees or failed Tamil asylum seekers or Tamils who left Sri Lanka illegally, separately or cumulatively.

    Complementary protection assessment

21. Having regard to all of the circumstances and findings above, the Tribunal also finds that there are not substantial grounds for believing there is a real risk the applicant will suffer significant harm arising from his race or religion or imputed link with the LTTE, his status as a Tamil returnee or failed Tamil asylum seeker or Tamil person who may be charged with departing Sri Lanka illegally. The Tribunal finds that there are not 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 he will suffer significant harm. 

22. CONCLUSION

23. 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).

24. 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).

25. 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

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

    Rea Hearn Mackinnon
    Member