1318774 (Refugee)

[2015] AATA 3800

1318774 (Refugee) [2015] AATA 3800 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1318774

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rea Hearn Mackinnon

DATE:24 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2015 at 10:18am

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] December 2012 and the delegate refused to grant the visa [in] December 2013.

3. The applicant appeared before the Tribunal on 16 April 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 in Sri Lanka by an influential member of the Eelam People’s Democratic Party (EPDP) or by the authorities because of an imputed association with the Liberation Tigers of Tamil Eelam (LTTE) or because of his race. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and nationality

11. The applicant has provided identifying documents including his birth certificate indicating that he is a national of Sri Lanka. The Tribunal accepts that he is a national of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality and his receiving country.

12. The applicant was born in [his home town], Jaffna on [date]. He is of Tamil ethnicity and Hindu religion. He has worked in [two occupations] and for [an agency]. His father died in [year]. His mother [and siblings] remain in Sri Lanka. Another [sibling] left Sri Lanka a few months ago and is currently in [another country] as a refugee. The applicant came to Australia [in] July 2012.

    Harm from EPDP

13. The applicant claimed in his written statement of 11 December 2012 that two cousins were forcibly recruited by the LTTE in [year] and killed in fighting with the Sri Lanka Lankan Army (SLA) in [year]. He claims that two other cousins have been missing since the end of the conflict in 2009.

14. The applicant claims that, in February 2012, he was kidnapped by [several] armed men in a white van, taken to a house in the forest where there were other armed and masked men, and interrogated. He told the Tribunal that the men called him by his family [name]. They asked him if he was connected to the LTTE; if he had been a fighter; if he had provided any assistance; whether there were any ex-LTTE members in his village and if anyone involved with the LTTE was staying in his house. He was beaten several times during this interrogation. Eventually the men told the applicant that they had taken the wrong person – it was a case of mistaken identity. The men warned him not to report the abduction or tell anyone about it then released him at about 3am and he made his way home.

15. The applicant stated that he does not know what organisation the men were from. They could have been from the EDPD or the intelligence service or a mix of both. He stated that the men did not identify themselves as EDPD but the EDPD is the only group that would do this.

16. The applicant stated that one of the men was not wearing a mask. He stated that he does not know this person or where he lives but he has seen him at the market a few times. He stated that this man is powerful because he is able to do things such as abduct the applicant.

17. The applicant stated that he did not report the abduction to the police because the men had warned him not to and because the white van operatives were working with the authorities so he would not get any justice.

18. The applicant stated that, a month or two after he was abducted, two men connected to the men who abducted him went to his house and asked where he was and what sort of work he does.  His mother told the men the applicant was not there although he was inside. The men did not identify themselves.

19. The applicant stated that about four or six weeks later, two men then took him to a quiet place and told him not to mention the abduction incident. These men were not wearing masks. He did not recognise them. Neither man was the unmasked man he saw when he was abducted. The men hit him and told him not to tell anyone about the abduction.

20. The applicant stated that he was taken again three more times. He was taken 30 or 40 days later by different men who threatened him and told him that, in spite of their warning, he had told someone about the abduction and they had no choice but to kill him. He was taken again 15 days later and told similar things and he was taken again four and a half months later and beaten and given similar warning and threats. He decided he couldn’t take it anymore and his mother arranged for him to come to Australia.

21. The applicant stated that he has never seen any of these men again but he stopped going out much because he was scared. He continued to work but his work was close to home. 

22. The applicant stated that he was not involved with the LTTE during the conflict and that he was never questioned or detained about any suspected involvement with the LTTE after the end of conflict. He stated that he had been in trouble with the Army a few times during the conflict. The Army caught him and hit him once when he was out during a curfew once and once when he was having sea bath and sometimes questioned him during round ups. 

23. In his written statement, the applicant claimed that he will be harmed by the Sri Lanka Army (SLA), the police, the Criminal Investigation Division (CID) or the EPDP because his cousins were involved with the LTTE. At the hearing, the applicant claimed that he fears harm from the unmasked man who abducted him and from this man’s henchmen who have been threatening him because he can identify the unmasked man. He stated that he is not suspected of being involved with the LTTE because the men abducted and questioned him by mistake.

24. The applicant claims that he was abducted by masked and armed members of the EPDP. The EPDP is a former paramilitary group primarily active in Jaffna which worked with and provided intelligence on suspected LTTE activity to the SLA during the conflict. The EPDP largely disarmed at the end of the conflict, established a political party and has been represented at both the provincial and national levels. Nevertheless, the EPDP continues to operate in Jaffna and has been engaged in criminal activities such as extortion, attacks and kidnappings.[1] In 2011, the US State Department reported that groups such as the EPDP had taken on increasingly criminal characteristics as they sought to solidify their territory and revenue sources in the post war environment[2] and in 2012, the International Crisis Group (ICG) reported that groups such as the EPDP still had close links with the military.[3]

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

    [2] US State Department, 2011, 2010 Human Rights Report Sri Lanka, 8 April

    [3] International Crisis Group 2012, Sri Lanka’s North I: The Denial of Minority Rights, Crisis Group Asia Report N°219, 16 March

25. The Tribunal accepts that the EPDP may have been present in [his home town] in 2012 but does not accept that members abducted the applicant in February 2012 and interrogated him in relation to LTTE involvement in a case of mistaken identity. Firstly, the Tribunal does not accept that former paramilitary groups such as the EPDP were engaged in searching for LTTE operatives in 2012, three years after the end of the war. The information above indicates that they had moved into political and criminal activities. Secondly, the Tribunal does not accept that such a case of mistaken identity would occur in a small community particularly as the applicant stated that his alleged abductors called him by his family nickname, thereby throwing doubt on his evidence that he was abducted by mistake.

26. Even if the applicant was abducted as claimed, which the Tribunal does not accept, the Tribunal does not accept that people have called on his mother looking for him or have threatened him on several occasions since then. Firstly, the country information above indicates that the former paramilitary groups still have strong ties with the military and security forces. Even if the applicant saw the face of one of the abductors (which the Tribunal does not accept), the man the applicant claims to have seen is unlikely to have been concerned about any follow up or possible charge by the police or other security forces even if a complaint had been made. The applicant’s own evidence that there was no point reporting the claimed abduction because the abductors were working with the authorities supports this finding. Secondly, the applicant’s evidence that several men warned him against reporting the abduction  and threatened to kill him – without masks and without apparent fear of being identified or reported - is inconsistent with the claim that he was being threatened to prevent him revealing the identity of one of the abductors.

27. The Tribunal does not accept that anyone has come looking for the applicant since his departure in relation to his claimed abduction or threats to harm him. The Tribunal accepts that the CID or other authorities may have inquired about his whereabouts because of a suspicion that he left Sri Lanka illegally (an offence under Sri Lankan law discussed further below).

    Imputed LTTE association

28. As the applicant has claimed that he was abducted and interrogated about the LTTE in a case of mistaken identity, the Tribunal does not accept that he has been imputed with an LTTE association in Sri Lanka.

29. The Tribunal notes that the applicants’ cousins were killed in [year] and does not accept that the applicant will be imputed with an LTTE association now on the basis of this familial relationship. The applicant has referred to two other cousins missing since the end of the conflict. The Tribunal notes that more than 40,000 Sri Lankans went missing at the end of the conflict[4] and does not accept that the applicant would be imputed with an LTTE association because of his missing cousins.  Further, the Tribunal notes that the applicant was not questioned or detained at the end of the conflict when approximately 11,000 suspected LTTE combatants or supporters were detained and when anyone suspected of any association was interrogated or detained.[5] 

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

    [5] Ibid

30. The applicant claims that the authorities will assume he is connected to the LTTE because he left Sri Lanka illegally and applied for asylum in Australia. He stated that they will ask him why he left and that he will not be able to tell them about the unmasked man so they will assume he was involved with the LTTE. The Tribunal does not accept that the applicant will be imputed with an LTTE association just because he left Sri Lanka illegally and applied for asylum. As set out below, thousands of Tamils have returned to Sri Lanka since 2009, including from Australia, and the evidence before the Tribunal does not indicate that they have been imputed with an LTTE association just because they left Sri Lanka, particularly when, as in the applicant’s case, they were in Sri Lanka at the end of the conflict when the Tamil population was screened for links to the LTTE without being suspected of any involvement.

    Race

31. The applicant claims that he has been denied basic human rights as a Tamil. He claims that the government is populating the north with Sinhalese, confiscating Tamil land and giving it to Sinhalese. He told the Tribunal that the Sinhalese are feeling very dominant since the end of the conflict and that the military have occupied the north. He stated that this “Sinhalisation” has not affected him personally but is depriving Tamils as a whole of their human rights.

32. In 2012, the ICG reported on Sinhalisation in the north and noted that “[m]uch of it follows directly from the stationing of tens of thousands of Sinhala-speaking and largely Buddhist troops in the formerly all-Tamil north and the efforts the military has made to entrench its presence and political control” and that:

    The almost entirely Tamil-speaking north is now dotted with Sinhala signboards, streets newly renamed in Sinhala, monuments to Sinhala war heroes, and even a war museum and battlefields that are open only to Sinhalese. Sinhala fishermen and businessmen are regularly given advantages not accorded to Tamils. The slow but steady movement of Sinhala settlers along the southern edges of the province, often with military and central government support and sometimes onto land previously farmed or occupied by Tamils, is particularly worrying.[6]

    [6] International Crisis Group 2012, Sri Lanka’s North I: The Denial of Minority Rights, Crisis Group Asia Report N°219, 16 March

33. The ICG reported that many Tamils in the north believe that Sinhalisation is a deliberate strategy to eliminate Tamil identity:

    The Sinhalisation of the north – which Tamil politicians and residents of the north frequently accuse the government of sponsoring – can refer to numerous different processes, ranging from changing the names of streets and villages from Tamil to Sinhala and the building of Buddha statues to the movement of large enough numbers of Sinhalese to the north to change the population balance in politically and socially significant ways.

    The widespread belief that there is a deliberate government policy to Sinhalise the north expresses a deep-seated fear among many Tamils that they are losing control over their own communities, land and resources, and through this, ultimately, losing their collective identity and political presence.[7]

    [7] Ibid

34. The Tribunal accepts that there is an increased Sinhalese presence in the north and that Tamils in the north are concerned about this process and that it is impacting adversely on traditional Tamil livelihoods. The Tribunal notes that the Army has returned parcels of land it had previously confiscated and has closed a number of camps in the north.[8] The Tribunal discussed with the applicant advice from the Department of Foreign Affairs and Trade (DFAT) that President Siresena has appointed a civilian governor in the north to strengthen civilian administration and reduce military involvement 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”; [9] and that the Tamil National Alliance holds the majority of seats in the Northern Provincial Council.[10]

    [8] ‘Sri Lanka Army to reduce presence in northern Jaffna’, The Hindu, 22 May 2013

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

    [10] Ibid

35. The Tribunal noted that the security situation in Sri Lanka is much improved since 2009[11]  and discussed advice from the UNHCR in 2012 that Tamils from the north are no longer presumed to be in need of protection because of their race or location;[12] as well as recent advice from DFAT that monitoring and harassment of Tamils in the north has eased since the end of the conflict and that fewer Tamils are being detained under the PTA.[13]

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

    [12] Ibid

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

36. The Tribunal considers that these developments indicate an improved situation for Tamils in the north and is satisfied that the applicant does not face a real chance of serious harm in Sri Lanka as a Tamil or as a Tamil from the north or because of the Sinhalisation of the north or a real risk of significant harm.

    Religion

37. The applicant stated that the authorities are destroying temples in the north so that Tamils cannot follow their faith. He told the Tribunal that, just after the war, the government destroyed small Hindu shrines and built Buddhist shrines or built Buddhist shrines close to Hindu temples and that Tamils could not access some Hindu shrines because they were inside military zones.

38. The country information above indicates that Buddhist statues are being built in the north, in part because of the presence of large numbers of Sinhalese soldiers. The Tribunal accepts that this process is of concern to Tamils in the north. However, the applicant stated at the hearing that he is able to attend a temple close to his home and the Tribunal is satisfied that he has not been prevented from practicing his religion. Freedom of religion is guaranteed under the Sri Lankan constitution and attacking places of worship is punishable with a fine and or period of imprisonment. DFAT recently advised that there are no official laws in Sri Lanka that discriminate on the basis of religion and that there is little official discrimination. DFAT has advised that there were 65 listed cases of attacks on places of religious worship between May 2009 and January 2013 (mostly on evangelical Christian churches); that most Sri Lankans are able to practice their faith unmolested; and that the risk of harassment or violence increases where practitioners are proselytising or carrying out conversions.[14]

    [14] Ibid

1. In view of this country information, the Tribunal does not accept that there is a real chance the applicant will suffer serious harm or a real risk he will suffer significant harm because of his religion.

   Failed asylum seeker

2. The applicant stated that he will be questioned, detained and mistreated on return to Sri Lanka because he applied for asylum in Australia and because he will be imputed to have been involved with the LTTE. The Tribunal does not accept he will be imputed with an LTTE association for the reasons set out above.

   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.[15]

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

3. 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.[16]

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

4. In its most recent country report, DFAT also 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 also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment.[17]

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

5. The Tribunal places weight on the DFAT advice above that there have not been any reports of mistreatment of returnees from Australia and 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 does not accept that the applicant will be harmed at the airport on return at the airport or in [his home town] because of an imputed LTTE association.

   Illegal departure

6. The applicant departed Sri Lanka illegally. He claims that he will be questioned on return to Sri Lanka about why he left and will be mistreated. He stated that he knows of a man from a neighbouring village who was detained and mistreated and put on reporting conditions when he was returned from Australia a few months ago. As stated above, the Sri Lankan authorities may already be aware that the applicant has departed illegally.

7. 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.

8. 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[18] 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.[19] 

   [18] 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

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

9. DFAT has advised that, following arrest at the airport, returnees are taken before the Negombo Magistrates Court at the first opportunity but may be held in custody for a few hours or a few days at either the Airport CID office or the Negombo Prison; that, when brought before the court, most returnees have been immediately granted bail on personal recognisance with a family member acting as guarantor; and that, when the case is heard, the Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) whilst the court in Negombo typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.[20]

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

10. 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.

11. 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.

12. 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”.[21] 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.

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

13. 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.

14. 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.

15. 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”.[22] 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.[23] 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”[24] 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”.[25]

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

    [23] 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

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

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

16. Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[26] 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.[27]

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

    [27] 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 

17. 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.

18. 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.

19. 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 deprtived of his life whilst on remand and the death penalty does not arise on the facts.

20. 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.

21. 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 with past employment experience and the Tribunal is satisfied that he will be able to find 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.

22. The Tribunal notes the applicant’s claim that a person from the neighbouring village was questioned and mistreated and put on reporting conditions when he returned to Sri Lanka. The Tribunal has no information about this person’s circumstances. The Tribunal places no weight on the information in assessing how the applicant will be treated on return to Sri Lanka. The Tribunal accepts that he may be placed on reporting conditions. The Tribunal does not accept that being placed on reporting conditions amounts to serious or significant harm.  

    Refugee Assessment

23. 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 EDPD because of his race or his religion or an imputed link with the LTTE, because he applied for asylum in Australia or because he 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 imputed political opinion or as a member of a particular social group of returnees or failed asylum seekers or persons who left Sri Lanka illegally, separately or cumulatively.

    Complementary protection assessment

24. 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 his religion or an imputed link with the LTTE, his status as a returnee or failed asylum seeker or 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. 

    Conclusion

25. 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).

26. 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).

27. 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

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

    Rea Hearn Mackinnon
    Member