1319097 (Refugee)

1319097 (Refugee) [2015] AATA 3247 (24 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1319097
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Suzanne Carlton
DATE:24 July 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 July 2015 at 9:51am

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] December 2013.
The applicant appeared before the Tribunal on 21 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the applicant, a Sri Lankan citizen who is an ethnic Tamil, claims to have suffered persecution because of his religion, presumed links with the LTTE, and membership of a particular social group, being his family. He claims that his family’s home has been threatened to be taken by the government and that he and his family have been attacked and are being threated by politically connected Sinhalese thugs. He also claims to fear religious attacks by hard line Buddhist nationalists.
He further fears the consequences of having left the country illegally and his return as a failed asylum seeker.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s protection visa application and the delegate’s decision
In his application for a protection visa the applicant provided the following details:
·He was born in [home location], [Town 1], Sri Lanka in [year].
·He is Tamil and Hindu.
·He studied up to year [number].
·He speaks Tamil.
·He has never been married.
·In Sri Lanka, he has worked as a [occupation]. Since being in Australia, he has worked in [an industry].
He provided to the Department:
·A copy of his Sri Lankan National Identity Card;
·A copy of his Sri Lankan birth certificate; and
·A copy of his Sri Lankan passport.
The applicant provided a signed statutory declaration made on 16 October 2012 which carried a declaration that the contents had been truly and accurately interpreted to him by a Tamil interpreter. The applicant received legal assistance in the preparation of this document. In relevant part, it stated:
Why I left Sri Lanka
6.My family and I have lived in an area called [home location] in the [Town 1] district for several years.
7.More recently the Sri Lankan government has announced that it would shortly be constructing a railway line which would travel via [his street] where I reside in the [home location] area.
8.The Sri Lankan government are now claiming that the land we have been living on for several years is state-owned land. My parents built a house on this land many years ago. As my parents and I have lived on this land for several years, built a house and developed the land in nearby areas, we believe this is our land.
9.My family and I are deeply worried that we would soon lose our home and be without shelter.
10.The Sri Lankan authorities have begun vigorously approaching land owned by Tamils in the recent past and have been providing various reasons when land is forcibly taken from Tamils.
11.My family and I are certain we would not be paid compensation when our lands are forcibly taken from us in the foreseeable future.
Incident that happened in 2009
12.In the area I live in [Town 1] there are three influential Sinhala thugs (i.e. [three names]). The three Sinhala thugs had the favour of a politician ([named]).
13.One day an uncle ([Mr A]) of the three Sinhala thugs who was intoxicated at the time began verbally and physically assaulting my cousin ([Cousin B], who is currently in Sri Lanka).
14.[Cousin B’s] cousin ([Cousin C] who is also my cousin [of current location]) and my brother ([Brother D]) asked [Mr A] why he assaulted [Cousin B]. [Mr A] began verbally assaulting [Cousin C], [Brother D] and my entire family and he left.
15.Moments later the three Sinhala thugs came with several other Sinhala men and there was an altercation between the Tamils (mostly members of my immediate and extended family) and the three Sinhala thugs and the other Sinhala men.
16.As a result my aunty (mother’s sister who name is [Aunt E]) was seriously injured (i.e. [details of injury]).
17.The incident was reported to the police and court proceedings commenced against the perpetrators.
18.The three Sinhala thugs were remanded but were eventually released as they were influential and were politically connected.
19.Both my cousin [Cousin C] and my brother [Brother D] gave evidence.
20.The case is yet to come to a close.
21.Though the three Sinhala thugs have been quiet up to now, they have threatened to harm the entire family including me once a decision is made by the courts. After having arrived in Australia I heard that another cousin ([Cousin F]) was stabbed in [a body location] by Sinhala men (I do not know who stabbed him nor do I know the reason for the stabbing)
22.It is for these reasons that my family decided I should flee Sri Lanka as it was only a matter of time till I was seriously harmed by the three Sinhala thugs and other Sinhalese.
23.[In] June 2012 I fled Sri Lanka and eventually reached the shores Christmas Island.
What I fear may happen to me if I returned to that country and why
24.I believe the three Sinhala thugs and other Sinhala men who are influential and are politically connected would cause serious harm to me.
25.The fact that I fled Sri Lanka illegally, made asylum claims in Australia and a Tamil I fear I am at risk of being harmed by the authorities if returned to Sri Lanka.
Who I think may home/mistreat me in that country and why.
26.I fear being seriously harmed and possibly killed by the three Sinhalese thugs as they have threatened to harm my entire family including me.
27.I fear being seriously harmed by the Sri Lankan authorities, for reasons of race and imputed political opinion.
Why I think the authorities of that country cannot or will not protect me if I were to go back to that country.
28.The three Sinhala thugs are influential and are politically connected and most of all are Sinhalese hence the Sri Lankan authorities would not take action even if a complaint is made against them. The fact that the three Sinhala thugs were released though the case is ongoing after having committed a serious offence and also the fact that the case has been dragging for such a long period of time I believe is indicative of their influence.
Why I think relocation to another area in my country is not a reasonable option.
29.The whole of Sri Lanka is unsafe for all Tamils. Though the LTTE has been militarily defeated the problems continue, as Tamils are harassed and subjected to harsh treatment by the Sri Lanka authorities and the majority Sinhalese.
The applicant’s claims at this point can be set out into four categories as (1) those relating to the family land; (2) those relating to the 2008/09 incident; (3) the stabbing of [Cousin F]; and (4) harm upon his return to Sri Lanka.
The applicant was interviewed by the Department [in] June 2013 with the assistance of a Tamil-speaking interpreter. Following that interview, the delegate proceeded to make the decision to refuse to grant the visa.
The delegate had concerns about the applicant’s credibility and the credibility of his account of the attack on him. The delegate accepted the details provided as to his employment and biographical information, as well as his illegal departure from Sri Lanka. He also accepted that he had no actual LTTE connections.
However, the delegate did not accept the applicant’s account of the attack on him at the ‘busport’.
The delegate expressed concern about the dates provided in that the applicant initially stated the incident involving his aunt’s hand occurred in 2009 but during the interview, he said that it was late 2008 and his mother had provided him with exact details the night before. The delegate noted that on his own evidence, the applicant and his family had not experienced any problems since the fight in 2008 or 2009.
The delegate considered that the issue with respect to the applicant’s house may well be a safety issue, as it is built on a marsh and requires the family to evacuate when it rains a lot, rather than an issue related to his Tamil ethnicity, his religion, or any other Convention nexus.
After considering all of the elements in the application, together with the independent material, the delegate found that the applicant did not have a well-founded fear of persecution based on his imputed political opinion or race or religion or membership of a particular social group, being his family.
On the basis of the findings in respect of s.36(2)(a) and finding no evidence to support the claim of serious harm on Convention grounds, the delegate further found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka as the receiving country that there was a real risk of significant harm.
Tribunal hearing
Prior to the Tribunal hearing, the applicant submitted an unsigned RRT Statement through his representative dated 3 April 2014. It was said to have been taken over the telephone with the assistance of a TIS interpreter in the Tamil and English languages. It stated in relevant part:
1.I have spoken with my Agent today about my application for a Protection visa.
2.She has explained to me the reasons why my application was refused.
3.I understand why my application was refused. However, I do not agree with the reasoning of the case-officer.
4.I continue to fear that I will be attacked by the Singhalese thugs who have attacked me and my family in the past. They have injured me in the past and I fear that I will be injured again.
5.The court case against these men has not yet been finalised. I believe that this is because they are Singhalese and work for a powerful man. The government is not interested in following this case through.
6.These men have not attacked my family recently. However, I fear that this is because the pending court case is keeping their behaviour under control. I believe that once the court case finalised they will attack us again.
7.I also continue to fear that our land will be forcibly confiscated. At the moment the government is not harassing us. I believe that this is because the only people from our family who remain in our village by the old people. All the young men in our family have left. The government is after us young men more than the old people.
8.Since I left Sri Lanka I have come to learn that non-Buddhists are being attacked in my country. As a Hindu, I fear that I will be attacked by Buddhist nationalists.
9.I continue to fear that if I am forcibly returned to Sri Lanka I will be suspected as an LTTE supporter because I have sought asylum in Australia.
Also prior to the Tribunal hearing, the applicant provided a letter from his family’s legal representative in relation to the court action arising from the attack. That letter, dated [in] April 2014 states, in relevant part:
The person called [a variant name of Cousin C] … is the aggrieved party of the complainant in case … of the Magistrate Court of [Town 1].
On the date [specified in 2008] the five (05) accused of this case carrying with weapons attacked the aforesaid [variant name of Cousin C] and cut the hands of [Aunt E] mother of the said [named cousin] and caused severe injury to her.
After this incident, I have been informed that, the accused of this case and their supporters threatened to murder the said [named cousin].
The above said case taken for enquiry time to time since 2008 by the Ho. Magistrate Court of [Town 1] and the forth coming enquiry is fixed on [a date in] 2014.
I appeared for the aggrieved party in this case is the court and confirming the same.

At the Tribunal hearing, the applicant appeared with his representative. I briefly explained the proceedings of the hearing and informed him that it was my practice, after providing him with the opportunity to present his case and answer any questions I may have, that I would grant a brief adjournment after which I would allow the representative to provide any oral submissions and for the applicant to put forward any last issues which he believed the Tribunal should take into account in making its decision.
The applicant reiterated his earlier background claims with the following clarifications.
Land
With respect to his family home, he said they had been there for [over 20] years. The railway corridor is two kilometres away. There are other families still in the area, including his. His brother is still living at home, but the rest of the people are old so they are left alone. There have been no further developments with respect to this issue. He does not believe that his family has been approached in relation to this issue since he has left Sri Lanka.
Fight in 2008
With respect to the 2008 fight involving [Mr A] and the three thugs, as well as the applicant’s family, there appeared to be significant changes to earlier versions of the accounts.
During the hearing, the applicant explained that the fight began between his cousin, [Cousin B] and [Mr A]. In explaining the relationships, he said that [Cousin B] is the brother of [Cousin F], who is said to have been stabbed in 2012. The applicant said that [Cousin B] is now in [another country] and that he is the son of the applicant’s maternal aunt – that is, a cousin on his mother’s side. But in discussing [Cousin F’s] stabbing later in the hearing, the applicant said that [Cousin F] is his father’s brother’s son – that is, a cousin on his father’s side.
The applicant also sought to explain the involvement of his cousin, [Cousin C], who is currently in [Australia]. He said that [Cousin C], along with the applicant’s brother, stepped in to verbally defend [Cousin B] from [Mr A]. Again in explaining the relationships, the applicant said that [Cousin C] is the son of his paternal uncle, so related through the applicant’s father. The applicant’s aunt, [Aunt E], who was injured in the attack, is the applicant’s maternal aunt, according to both the October 2012 statement of claims and the hearing and so related to that applicant through his mother. However, the letter provided by the family’s lawyer that the applicant submitted to the Tribunal, states that [Cousin C] is the son of [Aunt E].
Another notable difference, presented at hearing, from earlier versions of the applicant’s account of the attack was that the applicant claimed to have been nearby during the attack. This contradicts what he said during the delegate’s interview, that is, that he was in [another town] at the time and was attacked only upon his return at the local busport.
Yet during the hearing, the applicant explained that he was on the road near his aunt’s house when he was set upon by two thugs, [two of the three previous names], who worked for a local [official] as his bodyguards. These two were armed and the applicant grabbed, defensively, at the knife held by one of them, cutting his thumb and finger. He was rescued from the fight by his [friend], who was nearby and saw the fight. [This friend] then brought the applicant to the applicant’s aunt’s house.
Upon arriving there at [Aunt E’s] house, he saw the aftermath of the fracas, including broken chairs and his aunt’s injured hand. He said that shortly after that, [Aunt E], the applicant’s mother and brother, and [Cousin C] all went to the hospital together. The applicant did not go with them.
The applicant clarified that the witnesses to the fracas were his brother and his cousin, [Cousin C].
The applicant’s uncle, who is married to the applicant’s father’s sister, was living a couple of houses away. He saw the applicant was injured and brought him into his own house to treat his injury.
The applicant said that this uncle was ‘like a nurse’ and worked in the hospital normally, so he was able to treat the applicant. When asked if anyone else was there when his uncle was treating him, he said that his mother was and she looked on while the uncle treated him. This account contradicts the account that his mother had accompanied [Aunt E] to the hospital.
The letter from the lawyer about the ongoing case indicates that not only is [Cousin C] the son of the injured aunt [Aunt E], but that he is the key complainant in the matter. There is no mention of the applicant’s brother, even though, on the applicant’s account, [Cousin C] and his brother had equal involvement in the incident – that is, that they were each witness to the incident.
[Cousin C] is now in [Australia] having travelled with the applicant to Australia. The applicant’s brother remains in Sri Lanka. The applicant said that he is required to stay in the village by court order because of the trial. Because he is younger, it was deemed relatively safe for the brother to stay in Sri Lanka. This explanation seems incongruent that given the equal status of the applicant’s brother and [Cousin C], as witnesses, that [Cousin C] was not prevented from leaving but the applicant’s brother was. This seems especially peculiar when one considers the letter from the lawyer, indicating that the role of [Cousin C] is as a main complainant.
There was no mention, in the applicant’s statement of claims that he was attacked or even present during the fight. During the subsequent interview with the delegate, he stated that he had been set upon at the busport upon returning back to his village from [another town] after his aunt sustained her injury. He said he was beaten up a bit there. His unsigned RRT Statement seems to include the first mention that he sustained injury. During the hearing, this was expanded upon to include the cuts to his finger and thumb from the knife.
During the hearing, for the first time, the applicant mentioned that his father had also been beaten during that fight.
Incidents that occurred between late 2008 and 2012
The applicant has consistently claimed, prior to the hearing, that there had been no further attacks on him or on his family during this period. However, during the hearing, he explained that there had been two or three incidents where the thugs, or their friends, ‘picked fights’ with the applicant and his brother or cousins and beat them. This caused the applicant to apply for a passport “just in case”.
During the hearing, the applicant also recounted, for the first time, an incident where he was decorating for a party at a [location] and came upon a group of the thugs’ friends, one of whom slapped him and tried to provoke him into a fight. The applicant said that his friends came along and intervened.
The stabbing of [Cousin F]
During the hearing, the applicant provided a medical letter indicating that [Cousin F] had been treated for stab wounds in July 2012. The applicant said that [Cousin F] was unable to identify the people who had stabbed him, because he was young. No one in the applicant’s family is able to say whether the stabbing of [Cousin F] was related to the earlier incident or whether the perpetrators were the same or related. Nor was the applicant able to say why [Cousin F] was stabbed. All the applicant could say was that [Cousin F] had reported that the person who stabbed him was Sinhalese.
Other issues since the applicant arrived in Australia and the applicant’s treatment upon return
During the hearing, the applicant also recounted that his brother had come home on one occasion last year having been beaten up.
The court case is apparently continuing. The applicant expressed his view that it is taking so long to resolve because the victims are Tamils and the perpetrators are Sinhalese.
The applicant said that there have been warnings to the family that once the case concludes, the thugs and their families will seek revenge.
The applicant said that neither he nor his family has had any other problems with authorities or anyone else. He did not raise his concerns about religious persecution.
He claims that his ethnicity will give him a heightened profile with the authorities upon his return and they will conclude that he is a Tamil Tiger.
The Tribunal set out concerns to the applicant and provided the applicant and his representative with a brief adjournment to allow for the two to confer with the assistance of the interpreter. When the hearing resumed, both the applicant and the representative responded to the concerns put by the Tribunal.
The Tribunal referred to the inconsistencies or concerns about implausibility set out in the delegate’s decision, as well as those arising during the hearing. The representative stated that the initial confusion about the date on which the big fight occurred was addressed by the applicant’s mother and the provision of the letter form the lawyer. Prior to that, the applicant had been guessing the date. The applicant claimed that he had previously mentioned attacks on him and his own injuries, but that this claim had not been included by his representative. The representative then discussed the difficulties inherent in the IAAAS funding caseload and the limited time a representative has with each applicant.
The Tribunal referred to the profile of the applicant upon return that would differentiate the applicant from other Tamil returnees. The representative emphasised that the applicant’s concerns lie more in the surveillance he would experience upon his release to [Town 1], where as a minority Tamil, he would be targeted.
The representative brought to the Tribunal’s attention reports about the treatment of returned Tamil asylum seekers and referred to the applicant’s other family members who have left Sri Lanka. He mentioned particular vulnerability because of the applicant’s age bracket. The representative asserted that there was an absence of state protection.
With respect to the Tribunal’s concern about the claim of poor treatment of failed asylum seekers upon their return, the representative asserts that the applicant would be under some suspicion because of his scar, as well as because he is a young Tamil who has been overseas for a period of time and has past interaction with authorities (on the argument that the abductors were the authorities or persons acting at their behest). Finally, there was evidence that the applicant will suffer greater harm from any post-arrival detention in Sri Lanka because of his mental health.
COUNTRY INFORMATION
The US State Department has provided the following summary of the situation in Sri Lanka in 2013:
The major human rights problems were: attacks on, and harassment of, civil society activists, journalists, and persons viewed as sympathizers of the Liberation Tigers of Tamil Eelam (LTTE) terrorist organization by individuals allegedly tied to the government, creating an environment of fear and self-censorship; involuntary disappearances and a lack of accountability for thousands who disappeared in previous years; and widespread impunity for a broad range of human rights abuses, particularly torture by police and attacks on media institutions and the judiciary. Disappearances and killings continued to diminish in comparison with the immediate postwar period. Nevertheless, attacks, harassment, and threats by progovernment loyalists against critics of the government were prevalent, contributed to widespread self-censorship by journalists, and diminished democratic activity due to the general failure to prosecute perpetrators.[1]
[1] US State Department, Sri Lanka 2103 Human Right Report, p.1
The report goes on to indicate:
·Discrimination against the ethnic Tamil minority continued;[2]
·There were reports that the government, its agents or its paramilitary allies committed arbitrary or unlawful killings. The number of those killings appeared to decrease from the previous year;[3]
·Enforced and voluntary disappearances continued to be a problem. While no official statistics exist, an incomplete study of open-source media over a seven month period in 2013 showed abductions of at least 17 individuals in 12 events, most of them in Colombo or the Northern or Eastern provinces; [4] and
·There were credible reports that police and security forces tortured and abused citizens. In the Northern and Eastern provinces, ‘military intelligence and other security personal, sometimes allegedly working with paramilitaries, were responsible for the documented and undocumented detention of civilians suspected of LTTE connection. Detention reported was followed by interrogation that sometimes included mistreatment or torture.’[5]
[2] Ibid, p.2
[3] Ibid, pp2-3
[4] Ibid, p.6
[5] Ibid, p.6
The DFAT Country Report on Sri Lanka, current as at 16 February 2015, to which the Tribunal must have regard, variously states:
[Treatment of Tamils]
Many Tamils, particularly in the north and east, express a fear of monitoring, harassment, arrest and detention by security forces. For example, during the civil conflict, more Tamils were detained under emergency regulations and the PTA [Prevention of Terrorism Act] than any other ethnic group. This was largely due to LTTE members and supporters almost all being Tamil. However, there were also likely instances of discrimination in the application of these laws with LTTE support at times imputed on the basis of ethnicity… There are no published statistics on the numbers or ethnicity of those arrested under the PTA. However, DFAT assesses that there are currently fewer individuals detained under the PTA than there were during the conflict. The new Sirisena government has reportedly asked for a list of all detainees held under the PTA for review, and has said it is willing to work with the International Committee of the Red Cross in providing greater access to detainees and establishing a comprehensive database on detainees.
A number of those intending to leave Sri Lanka and travel to Australia by irregular means surveyed by the Australian National University’s Development Policy Centre, cited persecution and torture as reasons for leaving. This included 37 per cent who said they wanted to leave Sri Lanka because of ‘persecution in Sri Lanka’ and 36 per cent who cited ‘torture in Sri Lanka’. DFAT assesses that these fears are significant ‘push factors’ for external migration.
However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[6]
… [Disappearances]
There also have been credible reports of enforced or involuntary disappearances since the end of the conflict. A total of 126 complaints of disappearances were lodged with the HRCSL [Human Rights Commission of Sri Lanka] in 2012, down from a total of 1,030 in 2008, although some of these complaints have since been resolved.[7]
… [Torture]
In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. Incidents of torture are not confined to any particular ethnic, religious or political group.
Torture may be used to extract information or confessions from suspects. Although evidence obtained by torture is generally inadmissible in courts in Sri Lanka, for those suspects held under the PTA, all confessions obtained at or above the rank of Assistant Superintendent of Police are admissible in court.[8]
[6] DFAT Country Report, Sri Lanka (16 February 2015), paras 3.10-3.12
[7] Ibid, paras 4.7
[8] Ibid, paras 4.17-4.18
The UK Home Office Operational Guidance Note – Sri Lanka dated April 2012 makes the following statement which indicates that Tamils may experience discrimination in accessing government employment and housing:
Both local and Indian-origin Tamils maintained that they suffered long-standing, systematic discrimination in university education, government employment, and other matters controlled by the government. According to the SLHRC [Sri Lanka Human Rights Commission], Tamils also experienced discrimination in housing. Landlords were required to register any Tamil tenants and to report their presence to the police, although in practice many landlords did not comply. Tamils throughout the country, but especially in the conflict-affected north and east, reported frequent harassment of young and middle-age Tamil men by security forces and paramilitary groups.[9]
[9] UK HOME OFFICE 2012, OPERATIONAL GUIDANCE NOTE, APRIL, SECTION 3.6.4
The UNHCR’s July 2010 report ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’[10] states, in part:
These Guidelines are issued in the context of the improved human rights and security situation following the end of the armed conflict between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE) in May 2009, and are intended for the use of UNHCR and State adjudicators in the assessment of claims by Sri Lankan asylum-seekers. They supersede the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka and the subsequent Note on the Applicability of the 2009 Sri Lanka Guidelines. The Guidelines contain information on the particular profiles for which international protection needs may arise in the current context. Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex…”.
[10] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, >
The most recent version of the Guidelines, issued on 21 December 2012 states in part:
UNHCR has carefully analysed the relevant developments in Sri Lanka since the publication of the 2010 Guidelines, as well as newly available information on the conflict period. All claims lodged by asylum-seekers need to be considered on their merits, according to fair and efficient status determination procedures and up-to-date and relevant country of origin information. UNHCR considers that the risks facing individuals with the profiles outlined below require particularly careful examination, and that they are likely to be in need of international refugee protection, depending on the individual circumstances of the case. This listing is not necessarily exhaustive and is based on information available to UNHCR at the time of writing. Therefore, a claim should not automatically be considered as without merit simply because it does not fall within any of the profiles identified below. Certain claims by asylum-seekers from Sri Lanka may require examination for possible exclusion from refugee status.
Recent reports have been published detailing exposure to serious violence directed against people from several of the risk profiles listed below, including in some cases mistreatment amounting to torture.
The psychological and physical consequences of past exposure to such experiences in an environment of past prolonged armed conflict, serious human rights violations and military occupation, needs to be appropriately taken into account in the assessment of a claim[11].
… At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.
However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.[12]
[11] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, p25
[12] Ibid p.26-27

The 2012 version of the Guidelines identifies a list of general risk profiles which may give rise to a need for protection. That list is not exhaustive:
(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE); (ii) certain opposition politicians and political activists; (iii) certain journalists and other media professionals; (iv) certain human rights activists; (v) certain witnesses of human rights violations and victims of human rights violations seeking justice; (vi) women in certain circumstances; (vii) children in certain circumstances; and (viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.[13]
[13] Ibid, p.5
Those Guidelines caution that ethnicity and geographical origin may still have some significance:
Within each of the risk profiles described, there is an ethnic dimension to their vulnerability. Whereas persons belonging to the Sinhalese majority may fall within the risk profiles, generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. Other human rights issues, such as sexual and gender-based violence and violations of housing, land and property rights, also disproportionately affect members of ethnic minorities. In addition to a person’s ethnicity, the place of origin may also be a relevant factor in the assessment of risk.[14]
[14] Ibid p.26
The Tribunal also refers to the 2013 decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC) which comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning. It is a decision that is designed to guide UK decision makers. The decision qualifies the risk category relating to those with actual or perceived connections to the LTTE. It states that the establishment of former links to the LTTE are not determinative of an asylum claim today :
It is not established that previous LTTE connections or sympathies (whether direct or familial), are perceived by the GOSL as indicating now that an individual poses a destabilising threat in post-conflict Sri Lanka; as indicated in the UNCHR Guidelines and in the evidence before us, the extent to which past links predict future adverse interest will always be fact specific, and for those with close links to the LTTE’s operations during the war, the exclusion clauses may well be relevant.^[15]
^…
The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.[16]
[15] GJ and others (post-civil war returnees) Sri Lanka CG [2013] UKUT 00319 (AIC), para 325
[16]Ibid, para. 356(3)
The decision lists risk categories of those who are subject to persecution or serious harm, including:
Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.[17]
[17] Ibid, para.356(7)(a)
It goes on to state:
The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities a indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.[18]
[18] Ibid para.356(8)
Land Issue
The representative provided references to country information relating to that applicant’s claims about the acquisition of Tamil owned land without compensation. All of these sources focus on land taken by the military during the civil war for military high security zones, primarily in the North.
Religious Persecution
The representative provided references to country information relating to that applicant’s claims about persecution by hard line Buddhist nationalists against religious minorities. The country information indicates that Hindus are the second largest religious group in Sir Lanka. However, the reports referenced focus overwhelming on attacks by Buddhist groups against Muslims and Christians. There was one reference to the Buddhist destruction of a Hindu temple in the central district of Sri Lanka.
Failed Asylum Seekers and Illegal departure
In regard to illegal departure and the consequences of return the Tribunal has the following material before it in addition to the applicant and his adviser’s submissions:
DFAT Country report Sri Lanka 3 October 2014 pp.22 and 23; UNHCR Eligibility Guidelines for assessing the international protection needs of asylum seekers from Sri Lanka; Amnesty International Report: The UK Home Office Country Information and Guidance Sri Lanka: Tamil Separatism 28 August 2014: Freedom from Torture Report 13 September 2013. An ABC report of a Tamil asylum seeker in Australia and an article from the Sydney Morning Herald of 30 September 2014 ‘The Nightmare of returning to Sri Lanka’.
The UK Country of Origin Report advises:
The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a)Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostilities within Sri Lanka.
(b)Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c)Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d)A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant.
This is broadly consistent with UNHCR information which advises that persons with certain profiles may be in need of protection, as set out above.
Of failed asylum seekers, that report advises:
In 2011, a total of 1,728 refugees returned to Sri Lanka through the facilitated voluntary repatriation programme from India, which is supported by the Governments of India and Sri Lanka and facilitated by UNHCR. This was a decline compared to the previous year, when some 2,054 individuals returned. A commercial ferry service from Tamil Nadu to Colombo raised additional interest in voluntary repatriation in late 2011, but the ferry was later discontinued due to commercial disputes. Also in 2011, a handful of refugees returned voluntarily with UNHCR assistance from other countries of asylum, specifically Malaysia, Georgia and St. Lucia. In addition, some 634 refugees, who returned on their own, registered with UNHCR field offices in 2011.
The interest of Sri Lankan refugees in voluntarily repatriating continued to decline in 2012, with fewer than 1300 individuals returning to the country through UNHCR’s facilitated return program from January to mid December 2012. As in prior years, most refugee returnees came from India, but a small number returned from Malaysia, Hong Kong and Cambodia. In addition, the number of spontaneous refugee returnees who approached UNHCR in field locations has reduced by half compared to 2011.
… All returnees under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations.
UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return. UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.
In addition, IOM runs in a number of countries an “assisted voluntary return” (AVR) programme primarily intended for stranded migrants, which has been accessed by some Sri Lankan former asylum-seekers whose cases had been rejected in last instance, as well as by some who had abandoned their asylum claims. In 2011, 179 Sri Lankans reportedly returned under the AVR programme, substantially less than the 389 Sri Lankans returning with IOM support in 2010.
Some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka. There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.
DFAT advice of July 2013 is as follows:
3.1Sri Lankans are able to re-enter the country on temporary travel documents if they do not have their passport. However, Sri Lankan citizens exiting Sri Lanka can only do so with a passport and visa (if required) and are not able to depart on a temporary travel document. If a returnee has committed an offence under Sri Lankan law, they will be investigated and prosecuted for the offence.
3.2DFAT assesses that Sri Lankans returnees are treated along standard procedures applying to all Sri Lankans, regardless of their ethnicity and religion. DFAT has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.
3.3Upon arrival in Sri Lanka, authorised officers check passport/travel document and visa information against the Department of Immigration and Emigration (DoIE) immigration database. Under Sri Lanka’s Immigrants and Emigrants Act (the I&E Act), it is an offence to depart other than via an official port of entry/exit (such as a seaport or airport) and without a passport. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can also be charged with an offence under Section 45C of the I&E Act for organising or attempting to organise for another person to leave in contravention of the I&E Act. The I&E Act empowers authorised officers to detain and examine any person arriving in or leaving Sri Lanka and to require the production of any documents by such a person.
Application of the law in practice
3.4Returnees from Australia on charter flights are processed by DoIE, the State Intelligence Service (SIS) and Airport Criminal Investigations Department (CID). This process involves:
·DoIE confirming the returnee’s identity, their nationality and any offences committed under immigration law;
·State Intelligence Service checking the returnee against intelligence databases; and
·Airport CID verifying a person’s identity to then determine whether the person has any outstanding criminal matters.
3.5Returnees are considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. The CID will commence an investigation into the offence, including interviewing returnees about their illegal departure from Sri Lanka. Returnees are considered to be under arrest for the offence during this process in accordance with Sri Lankan law. As part of the investigation, fingerprints would usually be taken and the person photographed. Deputy Inspector General of CID has advised that the CID endeavours to complete all processing at the airport as quickly as possible.
3.6For returnees traveling on temporary travel documents, police undertake an investigative process to confirm the person is not trying to conceal their identity due to a criminal or terrorist background. This involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal records.
3.7Some returnees have been charged with people smuggling offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to robbery of a vessel used to travel to Australia, causing grievous harm to persons and people smuggling.
3.8For offences committed under the I&E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable. The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.
3.9Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity. The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.
3.10The two main NGOs involved in facilitating voluntary returns have told DFAT that they have not witnessed any differentiation in treatment by authorities towards returnees from Tamil Nadu, India, in comparison to other returnees.
3.11Sri Lankan asylum seekers and refugees who return to Sri Lanka through the UN High Commissioner for Refugees facilitated voluntary repatriation program are processed through DoIE and SIS on return to Sri Lanka but not CID. This process is the same for all persons returned regardless of the country from which they are being returned or when they departed Sri Lanka.
3.12In practice, where a returnee is travelling voluntarily on their own passport on a commercial flight they will not come to the attention of local authorities if they departed Sri Lanka regularly (legally through the airport/seaport) on the same passport, as they have not committed any offence under the I&E Act.
The most recent DFAT report on Sri Lanka is that of 16 February 2015 and it advises:
Internal relocation options can be limited by the absence of family connections or by a lack of financial resources. Many returnees have reported difficulties in accessing basic necessities such as shelter, food, water and sanitation and rebuilding livelihoods. The continued occupation of private lands by the military, difficulties establishing title to land ownership or uncleared land mines or unexploded ordinance can also complicate successful internal relocation, particularly in the north.
Because Sri Lankan security forces maintain effective control throughout Sri Lanka, it is unlikely that individuals will be able to relocate internally with any degree of anonymity. In particular, the Sri Lankan military, intelligence and police maintain a high level of awareness of returned IDPs to the north and east. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil IDPs who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the police Criminal Intelligence Division (CID) for interviews. It is too early to assess whether this will change under the Sirisena government.
The UNHCR’s December 2012 Eligibility Guidelines for Sri Lanka state that ‘an internal flight or relocation alternative is not available in Sri Lanka in cases where the feared persecution emanates from the state itself or elements associated with it’. Sri Lankan authorities retain comprehensive country-wide ‘stop’ and ‘watch’ lists of those suspected of involvement in terrorist or serious criminal offences. Although individuals will generally not be able to avoid adverse attention from security forces in these more serious cases, DFAT assesses that individuals do generally have the ability to relocate internally to minimise monitoring or harassment by local-level officials for petty issues, subject to the limitations outlined … above.
Treatment of Returnees
Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).
Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.
Exit and Entry Procedures
Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
Offences under the Immigrants and Emigrants Act
Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.
DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.
DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.
FINDINGS AND REASONS

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Reference
The applicant entered Australia from Sri Lanka and provided evidence of his Sri Lankan citizenship. Having considered the material on the applicant’s files, I find that the applicant is a citizen and national of Sri Lanka.
I am also satisfied that he does not have enforceable rights to enter and reside in any other country.
This being the case, I find that Sri Lanka is the country of reference in this matter.
The Applicant’s Claims
In relation to his claims of past persecution and why he left his country, the applicant’s claims have been consistent as to his aunt’s injury at the hands of the [official’s] bodyguards and that there is an ongoing legal matter relating to that.
I accept that there was an incident and that [Aunt E] sustained a serious injury. I accept that there are ongoing legal proceedings. However, I am not satisfied that the applicant is a close relation of [Aunt E] given his clear inconsistencies as to how he is related to [Aunt E], [Cousin B] and [Cousin C], and how each was related to the others.
I do not accept that the applicant was present during that incident or that he suffered injury or attack in relation to it, either before or after the incident. I make these findings based on the variances as to details of the incident and new claims raised during the protection visa process.
For these same reasons, I do not accept that the applicant was beaten up two or three times after the 2008 incident. I do not accept the applicant’s evidence as to these claims to have been credible.
On the applicant’s evidence, any threats of revenge against his family have been vague and indirect and more in the nature of a general warning that revenge might occur. I do not accept that he and his family face a real chance of revenge harm from private persons, persons who may be the bodyguards of [an official] or anyone else.
I accept that the applicant’s cousin [Cousin F] was stabbed. However, on the applicant’s own evidence, the stabbing was done by a Sinhalese person and the reason behind the stabbing is unknown.
I do not accept that the applicant and his family are in danger of losing their home in the reasonably foreseeable future. Since at least 2012 when the applicant came to Australia, there have been no further assertions made to the applicant’s family about who owns the land, on the applicant’s own evidence.
I do not accept that the applicant has a well-founded fear of persecution on the basis of his Hindu faith in the reasonably foreseeable future. Again, on his own evidence, this claim was made because he had heard of attacks by hard line Buddhist nationals on the basis of religion. He did not claim that he or his family have had any threats of persecution, harm or discrimination on this basis. Further the country information referred to by his legal representative supports, at its highest, only isolated and occasional incidents of persecution by Buddhist extremists against the Hindu population in Sri Lanka.
Country information in support of his claims
I do not accept that the country information provided by the representative, in relation to the land issue or the religious persecution issue support the applicant’s claims to have a well-founded fear of harm in relation to these claims. No country information has been provided in support of the applicant’s claims of harm from the three thugs or in relation to their asserted political connections.
I have given substantial weight to the assessment by the UNHCR in its eligibility guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka. I have also given weight to the information from DFAT as it is recent and because it is an authoritative source and they have been specifically charged with the provision of such information to the Australian government.
I accept that the applicant would be returning to Sri Lanka as a failed asylum seeker. The information available from, among others, the Australian Department of Foreign Affairs and Trade indicates that non-voluntary returnees are interviewed at the airport by various government departments and that a representative of the Australian Government is present at the airport for the arrival of non-voluntary returnees. The Department of Foreign Affairs and Trade has said that failed asylum seekers are not treated differently from other returnees and that allegations of mistreatment of returnees have not been substantiated.
I also accept that the applicant would be charged with offences under the Immigration and Emigration Act of Sri Lanka relating to his illegal departure from Sri Lanka. The information available to me indicates that the most likely penalty is a fine unless a person is considered to be an organiser of irregular migration of people from Sri Lanka.[19] The information available to me suggests that the applicant will be remanded in custody when he returns to Sri Lanka and that he may spend up to a fortnight in jail on remand.[20]
[19] DFAT, ‘Sri Lanka: RRT Country Information Request - LKA40999’, 19 October 2012, CX297471; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT, ‘Sri Lanka: RRT Country Information Request - LKA41452’, 27 February 2013, CX304258; DFAT, ‘Sri Lanka: RRT Country Information Request - LKA41452’, 1 March 2013, CX306710; DFAT Country Information Report in relation to Sri Lanka (31 July 2013) paragraphs 3.73, 3.75, 3.77-3.79.
[20] ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

100. I do not accept that there is anything in the applicant’s profile that would create for the applicant a heightened profile whereby he would face more serious harm or treatment than other similarly returned asylum seekers. I do not accept that there is a real chance that the applicant will be mistreated for reasons of his ethnicity, imputed political opinion or membership of a particular social group if he returns to Sri Lanka now or in the reasonably foreseeable future. I do not accept that there is a real chance that he will be persecuted because he will be returning to Sri Lanka as a failed asylum seeker who left Sri Lanka unlawfully.
101. Having considered the applicant’s claims in their totality I find that they do not meet the criteria of s.36(2)(a) and he is not a refugee.
COMPLEMENTARY PROTECTION
102. I have considered the applicant’s claims in full as discussed above and, just as I find he does not face a real chance of serious harm as a consequence of illegal departure, neither do I find that there is a real risk of significant harm.
103. As discussed above I find that the applicant will face checks and will appear before a magistrate charged with having departed the country illegally in breach of a law of general application.
104. The process of appearing at the magistrate’s court may result in a period of detention of up to two weeks on remand.
105. The situation of prisons in Sri Lanka and many other countries in that region will be less sanitary, more crowded and with less services than would be available in Australia.
106. I accept that the report that the applicant suffers from past trauma and that it could be exacerbated by detention. However, the evidence before me leads me to conclude that any hardship for that brief period is not as a result of intent or discrimination.
107. Section 36 (2A) of the Act describes significant harm as follows:
A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.

108. The evidence before me leads me to find that he is not at risk of being deprived of his life, suffering torture or subjected to either cruel or inhuman treatment or subjected to degrading treatment or punishment.
109. I find that the purpose of the detention is solely for the purpose of administering a law of general application, without intent to harm and without any disproportionate penalty.
110. While it is possible that he could be held on remand for up to two weeks, having considered the evidence before me I am satisfied that the harm he faces as a consequence is not of such gravitas as to constitute significant harm.
111. Having considered all aspects of the applicant’s circumstances in Sri Lanka I find there are not substantial grounds for me to believe that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka as the receiving country there is a real risk of significant harm.
112. 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).
113. 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).
114. 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
115. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Suzanne Carlton
Member

[2015] AATA 3247

24 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice