1318995 (Refugee)

[2015] AATA 3503

1318995 (Refugee) [2015] AATA 3503 (7 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1318995

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:7 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 September 2015 at 11:30am

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 24 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   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 has taken 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 applicant claims to be a citizen of  Sri Lanka who was born [in] Negombo in the Western Province of Sri [Lanka]. He lived in Negombo from 1990 to [July] 2012. He completed [year] of his schooling, [in] Negombo. The applicant is fluent in Sinhalese and can speak Tamil. He described his occupation before coming to Australia as fisherman. He worked as a self-employed fisherman with his father from 2007 to July 2012. The applicant departed Sri Lanka illegally [in] July 2012. The applicant’s father, mother and [siblings] are residing in Sri Lanka.

11. The applicant presented his claims in his protection visa application [in] December 2012 (folios 34 to 64 of the Department [File]), a Departmental interview he attended [in] September 2013  (folio 166 of [the file]) and at his Tribunal hearing on 24 August 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Summary of my claims

    1.     Set out below are my claims for protection and I look forward discussing same in further details.

    Introduction - Citizenship

    2.     I am a Sri Lankan citizen by birth of Sinhalese ethnicity and my religion is Roman Catholic. I have no other citizenships and I am not entitled to a citizenship nor have I right to residence in any other country.

    3.     I was born in Negambo (sic) [address] in Sri Lanka.

    4.     I have [siblings] who were also born in Negambo (sic) as was my father but my mother was born in [town].

    5.     Completed [school] in [year] in Negambo and was unemployed until 2007 I then started working as a Fisherman with my dad until I departed Sri Lanka in July 2012, I was self employed during this time.

    The country to which I fear returning

    6.     Sri Lanka

    Why I left that country

    7.     In January 2012, members of the UNP came to my home asking if I would help them towards the District elections due to take place on the 15th of January, I accepted and worked for them as a [occupation deleted] where they told me to.

    8.The UNP lost the elections to the Sri Lankan party and I am aware that the Sri Lankan party were seeking to hurt anyone who had helped the UNP during the elections. My friend's brother in law whom I knew was severely beaten by the Sri Lankan Party for having helped the UNP and hospitalised, there were rumours that many others were also beaten and I was scared.

    9.     Because of the Sri Lankan party brutal activities after the elections against whoever helped the 'UNP, I moved to [Location 1] which is an island around [hours] away from Negambo (sic).

    10.  Whilst I was on this Island fishing, I also had problems with the navy whereby they were taking the best and biggest fish of my catch and I had no recourse to complain to anyone or obtain protection from anyone and I soon realised I had jumped from the fire to the frypan and I will never be safe anywhere I go in Sri Lanka so I decided to leave this country.

    What I fear may happen to me in Sri Lanka.

    11.  I fear I will be killed if I return to Sri Lanka.

    12.  I fear I will be arrested and detained if I return to Sri Lanka.

    Who I think may harm/mistreat me in Sri Lanka and why.

    13.  I fear the authorities will harm me because I departed Sri Lanka unlawfully.

    Do I think the authorities of that country can and will protect me and or my accompanying family members, where applicable, if! / we were to go back.

    14.  No, they are the ones I fear.

    Do I think that there is a place in that country where I could be safe.

    15.  No.

12. The delegate of the Minister for Immigration and Border Protection refused the applicant a protection visa [in] December 2013 and he applied to this Tribunal for review of that decision [in] December 2013 . Attached to the review application was a copy of the delegate’s decision.

13. The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

15. The applicant claimed in the hearing that he fears returning to Sri Lanka because of problems he had when he engaged in politics. He claimed he was threatened by a person contesting in his village, who asked him why he was not working for him and instead working for outsiders. The applicant claimed that he believes [Mr A] (the Minister’s brother) would kill him or cut his limbs. When asked why [Mr A] would want to harm him now, the applicant claimed that they are still in power and they have that enmity with him. 

16. The Tribunal does not accept that the applicant was politically active in Sri Lanka.  The Tribunal found the applicant’s evidence regarding his participation in politics vague and inconsistent. The Tribunal notes the applicant claimed in the hearing that he started working for the United National Party (UNP) in 2010. He claimed  that he participated in town council elections (local authorities election) but he could not remember when they were held. He stated that he participated in meetings and put up posters during this election. When asked how he actually came to get involved in politics in 2010, the applicant stated that he had a liking to go and do some work so he joined and started working for them. The applicant confirmed that he approached the UNP and asked to help them with their activities.

    17.    In contrast, the Tribunal notes according to the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that in January 2012 members of the UNP came to his home asking if he would help them towards the district elections (provincial council elections) due to take place on 15 January. Further, the Tribunal notes that there was nothing in the applicant’s protection visa application to suggest that he had been politically active prior to January 2012, as he claimed in the hearing.

    18.    The Tribunal also notes the applicant claimed in his statutory declaration that he worked for the UNP as a [occupation deleted]. There was nothing in the applicant’s statutory declaration about participating in party meetings. However in the hearing, the applicant claimed he did the same kind of work during this election that he did during 2010; he mostly attended meetings and put up posters.  He did not engage in any other activities during this election.

    19.    The Tribunal notes the applicant’s evidence that he had not recorded anything in writing and that he may have made a small mistake but what he had told the Tribunal is what he could remember; he may have forgotten some things. While the Tribunal appreciates the applicant may not have written down his past experiences, the Tribunal does not accept that if the applicant had engaged in politics, that he would not provide consistent evidence in relation to central and basic issues such as the year he first became politically active, how he came to be involved in politics and what activities he participated in.

    20.    More importantly, the Tribunal has taken into consideration information from the Sri Lanka Department of Elections website which provides details of the past elections in Sri Lanka. The Tribunal notes according to this website there were no local authorities elections held in 2010. In regard to the election in 2012, the applicant claimed that provincial council elections were held in the first month or so. However, according to the Department of Elections website, provincial council elections were held in September 2012. While the applicant claimed that he answered the questions according to his recollections and had not gone through any papers so he did not know if he had made a mistake, the Tribunal does not accept that if the applicant had attended UNP party meetings and [carried out particular tasks] during these elections, that he would not be able to identify with some degree of accuracy at least the month and the year in which these elections were held. Nor does the Tribunal accept on the evidence before it that the applicant has any problems with his memory that may have caused him to forget when the elections he allegedly actively participated in were held, as he claimed in the hearing.

    21.    Based on the applicant’s inconsistent evidence regarding when he engaged in activities supporting the UNP, how he came to be involved in politics, what activities he participated in and the elections he allegedly participated in, the Tribunal does not accept that the applicant actively supported the UNP in the past in Sri Lanka. As the Tribunal does not accept that the applicant was politically active at all in the past in Sri Lanka, the Tribunal does not accept that the applicant received any threats from [Mr A] or his people. The Tribunal also notes that the applicant made no mention of [Mr A] or the threats or warning he claimed he received from [Mr A] in his statutory declaration attached to his protection visa application. While the applicant claimed that he could well remember the interviews and declarations and he had given this name when he was answering, the Tribunal finds that there is nothing in the applicant’s statutory declaration to suggest that the applicant experienced any problems personally as a result of his political activities and particularly that he was threatened by [Mr A]. The Tribunal finds it implausible that if the applicant had received such threats and/or warnings that he would fail to mention these in his explanation for why he left the country.

    22.    It therefore follows the Tribunal does not accept that after the election, while the applicant and his parents were in [Location 1, Mr A]’s people came to his home and made enquiries about him. Nor does the Tribunal accept the applicant’s claim in the hearing that anyone came looking for him between the election and when he departed the country  or that two or three months after he departed Sri Lanka [Mr A]’s people had come and asked his “home people” for him. Again, the Tribunal notes that there was nothing about any enquiries made about his whereabouts either prior to his departure from Sri Lanka or since he left the country in the applicant’s statutory declaration attached to his protection visa application.

    23.    As the Tribunal does not accept that the applicant ever engaged in any political activities in support of the UNP in the past in Sri Lanka or that he was ever threatened or warned by [Mr A] or his people either during the election in 2012 or after the election, and does not accept on the evidence before it that the applicant will be involved in politics in the future, the Tribunal does not accept that the applicant faces a real chance of persecution from [Mr A] or his people or the Sri Lanka party and its supporters if he returns to Sri Lanka, now or in the reasonably foreseeable future, because of his alleged political opinion.

    24.    The applicant also claimed in the hearing once while he was in [Location 1] the navy made him and his uncle jump into the sea and swim. When asked what happened, the applicant claimed that when he went fishing with the nets, the navy came and held a gun to his head and his uncle and asked them to jump into the sea and swim so they swam. The applicant stated that he and his uncle were on a boat in the middle of the sea when the navy came in their boat and they pointed their guns at them and told them to jump. He stated after they jumped into the sea the navy departed and with the greatest of difficulty they swam back to their boat. The applicant claimed this incident occurred about two weeks after he had gone to [Location 1], a month after the election in 2012. When asked if he had any other problems with the navy after this incident, the applicant stated nothing happened because they never went to question or complain to the police after that; they just kept quiet. The applicant confirmed he continued fishing after this incident and he had no further problems with the navy.

    25.    The Tribunal notes that there was nothing in the applicant’s statutory declaration attached to his protection visa application about this incident when the navy allegedly put a gun to the applicant’s head and made him and his uncle jump into the sea and swim. Instead, the applicant claimed when he went to [Location 1] he had problems with the navy whereby they were taking the best and biggest fish of his catch. The Tribunal finds it implausible given the seriousness of this alleged incident with the navy that the applicant would fail to include any reference to it in his statutory declaration.

    26.    Further, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant claimed during the interview with the Department, that after being in [Location 1] for about six weeks, near a place called [name], (hill), which used to be controlled by Tamil terrorists, the navy fired shots into the air, forcing him to jump into the sea. In response to the question why they fired at him, the applicant told the Department because he stayed close to the hill. The applicant responded in the hearing stating that he had told the Department that they fired shots and also held a gun to his head and made him jump into the sea. He stated that he always answers with his memory and had not taken any notes so he may have made small mistakes. He claimed that he told the same thing last time and today, that he was in the sea, and not on the land and they fired shots into the air. The Tribunal has listened to the recording of the interview with the delegate and finds the delegate’s decision provides an accurate reflection of the evidence given by the applicant during the interview and there was no mention made by the applicant of the navy holding a gun to his head, as he claimed in the hearing.   

    27.    Given the significant inconsistencies in the applicant’s evidence at various stages in the process as to the problems that he allegedly experienced from the navy while he was in [Location 1], the Tribunal does not accept that the applicant had any encounters with the navy in [Location 1] including having a gun pointed at his head and being asked to jump into the sea or having to provide the navy the biggest and best of his catch from 2007 since he started fishing with his father in [Location 1], as he claimed in the hearing. The Tribunal also has serious concerns about the credibility of the applicant’s claim that he ever spent any time in [Location 1]. The Tribunal notes in the applicant’s protection visa application it was stated that he lived at [an address] in Sri Lanka from birth until he departed the country. As it put to the applicant in the hearing, there is nothing in his protection visa application to suggest that he lived in [Location 1] for a period of six or seven years as he claimed in the hearing. While the applicant  asserted that he had told that he was in [Location 1] from straight after finishing school, the applicant only provided his address in Negombo in his protection visa application. Also, according to his statutory declaration attached to his protection visa application, the applicant claimed he moved to [Location 1], an island [several] hours away from Negombo, because of the Sri Lankan party’s brutal activities after the elections against whoever helped the UNP.  Based on the inconsistency in the applicant’s evidence as to when he was residing in [Location 1], the Tribunal does not accept that the applicant ever lived there in the past.

    28.    Based on the evidence before it, the Tribunal accepts that the applicant may have worked as a fisherman in Sri Lanka, however not in [Location 1] since 2007 as he asserted during the hearing. For the reasons provided above, it does not accept that the applicant ever experienced any problems over the many years that he worked as a fisherman. The Tribunal therefore does not accept on the evidence before it that if the applicant returns to Sri Lanka and resumes his employment as a fisherman, he would face a real chance of persecution now or in the reasonably foreseeable future because of his employment.   

    29.      The Tribunal notes the applicant’s adviser’s submission at the conclusion of the hearing that he assisted the applicant in preparing his statutory declaration and had asked the applicant during the break in the hearing if he was on medication, after noticing that there were a couple of letters on his file from psychiatrists, and the applicant had advised him that he was on medication including on the day he was interviewed by him and this medication led him to forget certain things and become very dizzy and disorientated. The adviser did not have the name of the medication the applicant was allegedly on at the time he interviewed the applicant and was therefore not able to confirm the side effects of such medication. However, he submitted giving the applicant the benefit of the doubt, that may explain some of the discrepancies.  As the Tribunal noted during the hearing there is nothing on either the Department’s file or the Tribunal’s file indicating that the applicant had received any medical attention including from psychiatrists. The Tribunal notes the applicant was given time after the hearing to submit the letters referred to by the applicant’s adviser during the hearing and at the time of decision, the Tribunal has not received any letters or medical evidence confirming that the applicant had seen a psychiatrist or medical practitioner and was on medication either at the time he was interviewed by his adviser or at any time. Given the Tribunal’s concerns regarding the applicant’s credibility, as raised during the hearing, the vagueness of the information regarding the medication the applicant was allegedly prescribed and the absence of any evidence to confirm the applicant was on medication as claimed, the Tribunal does not accept that the applicant was on medication at the time he made his statutory declaration or was interviewed by his adviser and therefore does not accept that this explains the deficiencies in the applicant’s evidence.

    30.    The Tribunal has considered the applicant’s claim in his statutory declaration attached to his protection visa application that he may be arrested and detained if he returned to Sri Lanka because he departed the country unlawfully. When asked what he believes would happen to him because he departed Sri Lanka illegally, the applicant stated that he could not tell exactly what would happen but the government would invariably take him into custody, question him and frighten him.  As the Tribunal put to the applicant in the hearing, under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. This law is a national law which has a legitimate objective in upholding border integrity and applies to everyone who breaches it and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal does not accept the applicant’s adviser’s submission that the law is targeted to asylum seekers because no-one else leaves the country illegally but those seeking asylum. The Tribunal therefore finds that what the applicant will face on return to Sri Lanka is prosecution under a law of general application and not persecution within the meaning of the Convention.

    31.      The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport.

    32.      As the Tribunal put to the applicant in the hearing, the information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes, as it did in the hearing, the applicant has his father, mother and [siblings] who can stand as guarantor for him and there is nothing to suggest that they would not do this for him. The Tribunal therefore does not accept looking at his particular circumstances and the country information, he would face extended administrative detention on his return. As discussed above, the independent information suggests that the applicant would be detained for a brief period that may well be less than a day or at most several days and although sources indicate that prison conditions in Sri Lanka are poor, the information does not indicate that there is real chance that a person with the applicant’s profile, a Sinhalese man from Negombo who has no adverse profile, would suffer serious harm if held in detention for a short period of a few days.

    33.      The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees, despite the applicant’s adviser’s submission that the law provides for 12 months imprisonment and that the applicant will be jailed. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him.

    34.      The Tribunal has had regard to page 16 of the Report of the Special Rapporteur on the Human Rights of Migrants dated 2 April 2015, referred to by the applicant’s adviser during the hearing, which states that the Sri Lankan authorities assurances that no penalty is imposed on those persons, as they are seen as victims of smugglers, is contradicted by reports provided to the Special Rapporteur, as well as statements by Sri Lankan officials to the media, such as those returned would be charged with leaving the country illegally and those found guilty face rigorous imprisonment. The Tribunal notes that there is no detail provided in relation to the contradictory reports provided to the Special Rapporteur such as the number of reports received or the nature of the information received. Without further information regarding the conflicting reports received by the Special Rapporteur, the Tribunal places little weight on what on the face of it appears to be essentially unsubstantiated assertions. In relation to the media reports referred to in this report, the Tribunal notes that cited was one article from BBC News dated from 7 July 2014 titled Australia court blocks migrants’ return to Sri Lanka  which  attributes the statement regarding those found guilty facing “rigorous imprisonment” generally to “Sri Lanka”. The Tribunal does not accept on this one media report alone that the more detailed information provided by DFAT in their recent report is not reliable.    

    35.    In light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

    36.    Based on the above, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally.

    37.    The Tribunal observed during the hearing that according to the delegate’s decision the applicant had raised claims that the fact that he had sought protection in Australia may be an issue for him on his return to Sri Lanka and asked the applicant what he feared may happen for this reason. The applicant stated that he might not have a problem from the government but from [Mr A] he may have some problems.

    38.      The Tribunal also notes the applicant’s adviser’s submission that in 2010 a Sri Lankan Commander visited a detention centre and warned all detainees that upon return, one day they will be caught and killed. While the adviser stated that he had information to that effect and a publication with a photograph of the Commander, the Tribunal has not received any evidence to substantiate his claims and as such, the Tribunal does not place any weight on this information.  

    39.    As discussed with the applicant in the hearing, DFAT’s advice in the Country Report dated 16 February 2015 is that significant numbers of Sri Lankans have been returned involuntarily to Sri Lanka from Australia and other countries and the independent sources do not indicate that returnees, as identified as someone who had sought asylum in Australia or another western country would face a real chance of significant harm.

    40.    Based on the country information the Tribunal put to the applicant from various sources including DFAT, other foreign governments and UNHCR (see Sri Lanka: Treatment of Failed Asylum Seekers and Returns Issue Paper dated May 2015) regarding people returning to Sri Lanka as failed asylum seekers, the screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort and the process is not impacted by ethnicity. The independent country information available contains reports indicating that returned asylum seekers are usually kept at the airport for some hours while their identity is checked.  They may be questioned during this period. The reports suggest that persons without any adverse profile, for example a criminal record, are released at the airport without further interest. While the Tribunal notes that there were some reports by human rights organisations such as Amnesty and  Human Rights Watch suggesting some examples of serious harm to returnees –these appear to be isolated examples where individuals have particular adverse profiles such as a criminal record or links to the LTTE. Given the applicant has not claimed to have had a criminal record in Sri Lanka or to have been of any interest to the authorities for any reason including suspected links to the LTTE, the Tribunal does not accept that the applicant faces a real chance of serious harm on his return to Sri Lanka as failed asylum seeker.

    41.      The Tribunal notes that it asked the applicant if there were any other reasons why he  feared returning to Sri Lanka and he responded “nothing comes to his mind”. However, after a break to allow the applicant to confer with his adviser, the applicant’s adviser submitted that the applicant is Catholic and according to a report from Amnesty International, religious freedom is increasingly becoming an issue in Sri Lanka.  The Tribunal notes that nothing was raised in relation to the applicant’s Christian religion, including any fear that he will be persecuted because of his religion, until the end of the hearing and given the delay in raising this claim, the Tribunal has serious concerns about the veracity of this claimed fear.

    42.      The Tribunal notes the applicant’s evidence that he was able to practise his religion in Sri Lanka and that he attended a Catholic school.  The applicant claimed that he stopped going to church after there were some problems in another area, not his area, when some damage was done to a church. He stated after that he was not interested in going to church. The Tribunal notes that the applicant could not remember when this church was damaged. He claimed it was in an area called Thalawila, which was about 50 km away from where he lived. The applicant confirmed that there were no problems in Negombo. The applicant’s adviser asked the applicant if the church had not been destroyed and the problems against Roman Catholics had not been present, would he have continued to go to church. The applicant stated that he would have gone but he was suspecting that there could be some problems in his church. The Tribunal does not accept that the applicant stopped going to church because he feared that there would be problems in his church or that he would be harmed because of his religion given that the applicant was unable to tell the Tribunal when he ceased attending church.

    43.      When asked if he would have any problems if he returned to Sri Lanka because of his religion, the applicant stated that up to now nothing happened to him because of his religious beliefs. The Tribunal asked the applicant if he believed something would happen to him if he returned to Sri Lanka now because of his religion. He stated he could not say anything because the majority of the country is Buddhist; he did not know if anything would happen. The applicant confirmed his parents are Catholic and they go to church. When asked if they have had any problems since he came to Australia because of their religion, the applicant stated no.

1. The Tribunal has considered the Amnesty International Report 2014/15 –Sri Lanka submitted by the applicant’s adviser which discusses “discrimination – attacks on minorities” including  ethnic, linguistic and religious minorities. In relation to Christians, the report provides that Hindu and Christian religious observance was restricted in Tamil communities of northern Sri Lanka and police failed to protect religious minorities when they faced violence by communal forces and did not arrest perpetrators of such violence. It also provided that threats, harassment and violence against Muslims, Christian and their places of worship escalated in 2014 when large-scale violence in a Muslim neighbourhood in June in Aluthgama resulted in deaths and injuries among residents and destruction of homes and businesses.

2. The Tribunal has also had regard to DFAT’s report dated 16 February 2015 which provides that the Sri Lankan Constitution guarantees freedom of religion and belief. Attacking places of worship or religious objects is punishable with a fine/and or a maximum of two years imprisonment. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment. DFAT assess there is little official discrimination on the basis of religion It was noted that religious tension rose after mid-2012, although the new Sirisena government has publicly said it is committed to ethnic and religious reconciliation. In a 2013 report, the Centre of Policy Alternatives (CPA) listed 65 cases of attacks on places of worship throughout the country between May 2009 and January 2013. The majority of cases reported by CPA were against evangelical Christian churches, and not the Roman Catholic church. According to the SLMC, the largest Muslim political party in Sri Lanka, there were at least 241 anti-Muslim attacks and 69 anti-Christian attacks during 2013, some of which involved physical violence or the destruction of property. While charges have been laid in some cases and other cases have been settled between the parties, many attacks were not investigated. In April 2014, the former Government established a special police unit to investigate ‘complaints relating to religious matters’.  In the latter part of 2014, there was a drop in reported anti-Muslim attacks. DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith unmolested. However, the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out ‘unethical conversions’ which generally involves a financial inducement to convert religion.

3. The Tribunal finds that the applicant has been able to practise his Catholic religion in Sri Lanka in the past and that he will be able to continue to do so upon his return to the country. The Tribunal finds that the applicant has not been subjected to any harm in the past because of his religious identity. On the basis of the independent information cited above, the applicant’s profile as a Roman Catholic and not a member of an Evangelical church or someone who engages in proselytising, and the applicant and his family’s own experiences in Sri Lanka, the Tribunal does not accept that the applicant faces a real chance of persecution for reason of his Roman Catholic religion, now or in the reasonably foreseeable future, if returned to Sri Lanka.

4. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted for a Convention reason including his alleged political opinion, his illegal departure from Sri Lanka, his membership of a particular social group of failed asylum seekers or his Roman Catholic religion. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

   48. On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

   49. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are 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 that he will suffer significant harm as defined in subsection 36(2A) of the Act.

   50.      Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept the applicant was involved in politics in Sri Lanka. It does not accept that he supported or worked for the UNP either during an election in 2010 or 2012 which resulted in him receiving threats or warnings from [Mr A or Mr A]’s people or the Sri Lankan Party during the election in 2012 or any time after. The Tribunal also does not accept on the evidence before it that the applicant will be involved in politics in the future. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from either [Mr A] or anyone acting on his behalf or the Sri Lanka Party or people associated with that party.

5. Similarly, the Tribunal does not accept, for the reasons discussed above, that the applicant had any problems with the Navy when he was allegedly residing in [Location 1], including having the biggest and best of his catch taken by the Navy or having a gun pointed at his head and/or shots fired into the air and made to jump into the sea. As a result, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk he will suffer significant harm from the navy or the authorities as a result of these alleged past problems. Nor does the Tribunal accept that the applicant faces a real risk of serious harm to him if he returns to Sri Lanka and resumes fishing, given that the Tribunal finds that the applicant has not experienced any problems in the past as a result of his employment.

6. Based on the findings of the Tribunal above regarding the applicants past experiences in Sri Lanka and the country information discussing the situation for Christians in the country, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm as a Roman Catholic.

7. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM3 complementary protection guidelines in relation to the imprisonment and prison condition, that he faces a real risk of being significantly harmed during this process.

8. In regard to the penalty the applicant may face, based on the information, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment. As such, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is a real risk he will suffer significant harm such as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment while in detention.

9. The Tribunal is also not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia. As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.

10. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

11. 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 satisfies the criterion set out in s.36(2)(a).

12. 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).

13. 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

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

    Sydelle Muling
    Member