1319174 (Refugee)

[2015] AATA 3676

1319174 (Refugee) [2015] AATA 3676 (9 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1319174

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:9 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2015 at 10:58am

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

3. The applicant appeared before the Tribunal on 27 August 2015 and 18 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [a named witness]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal 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 [a village, in Town 1]. According to this protection visa application he lived in [Town 1, Location 2], except for when he was in [another country] for 28 days. He completed [years] education and is fluent in Tamil and can speak Sinhalese. He described his occupation before coming to Australia as “[occupation]”. From 2006 to 2008 he worked as [Trade 3] in [Town 4], 2008 to July 2012 a [certain occupation and Occupation 5] (until March 2012) and from March 2012 to July 2012 a [occupation]. 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] November 2012 (folios 49 to 86 of the Department File [number]), a Departmental interview he attended [in] September 2013  (folio 175 of file [number]), a submission from the applicant’s adviser received by the Tribunal on 31 March 2014 and at his Tribunal hearings on 27 August 2015 and 18 September 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Background Information:

    My name is [applicant’s name]and I am a [age] year old male born in [Location 6, Town 1, Location 2] Sri Lanka. My ethnicity is Tamil and my religion is Christian. I have never been married. My father, mother and siblings remain in [Location 6, Town 1, Location 2], Sri Lanka.

    Why I left my home country:

    I had an issue with a political minister called [Mr A], as his daughter eloped with a boy. I knew the boy as he had [a shop] beside the [Trade 3] shop I worked in. The girl's father, [Mr A] suspected that I knew about them eloping and had helped them.

    [Mr A] sent some body guards to get me. I was caught by the body guards and I was hit and whacked with a pistol by them, however whilst driving the police stopped us and they took us all to the police station. Later I overheard that the minister, [Mr A] paid another Minister's ([name]) body guards 300,000 rupees to kill us and these were the people that captured us.

    At the police station the body guards were charged by the police and this is still an ongoing case in [village] court. The body guards have been threatening to kill me if I don't drop the case. Whenever I go to the court about the case I was threatened by the body guards. When I drive the lorry I have to pass through their area and this also gives me great fear. The minister of the body guards, ([name]) is still in power and has supporters all over Sri Lanka.

    This is the reason that I have fled Sri Lanka

    What I fear might happen if I go back to my home country:

    The body guards have threatened to bomb me and kill me and I fear if I return they will find me and carry out their threat.

    Who I think will harm or mistreat me if I go back to my home country:

    As I have said the body guards are the ones that will harm or kill me.

    Why I believe they will harm or mistreat me if I go back:

    The minister is still in power and this gives the body guard's power and they want me to not go to court against them so they will carry out their threats.

    Why I believe the authorities in my home country will not protect me if I go back:

    The body guards are the ones that work for the government officials so the authorities will not protect me.

    Why I think I will suffer significant harm if I go back to my home country:

    The body guards have threatened to kill me and I know if they find me they will definitely kill me.

    Other matters that I would like the Department to take into account:

    I know of 2 others that were caught with me, by the body guards and they have left Sri Lanka also and are now in [Australia].

    As a [Occupation 5] I am always moving from one place to another and get many abusive words from the Sinhalese and I am always segregated just because I am a Tamil. The body guards and their minister boss are all Sinhalese.

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 Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including his national identity card, passport, birth certificate and drivers licence. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.  

16. The applicant claimed in the hearing that he fears if he returns to Sri Lanka he will be harmed by the people who abducted him, including the bodyguards of a Minister. He claimed that he was taken by these people because they suspected he knew something about the daughter of a person named [Mr A], who had gone missing, however the police stopped the van that he and others had been put in and the perpetrators were apprehended and there was a case against them, which the applicant was a witness to. 

17. The Tribunal has serious doubts that the applicant was abducted as he claimed given a number of concerns it has in relation to the credibility of his evidence.

18. The Tribunal notes that the applicant claimed in the hearing that he was abducted [in] April 2009. However, his previous evidence was that this incident occurred [in] July 2009. When asked to explain the difference in his evidence regarding when this incident occurred, the applicant stated that it was hard to remember the dates. The Tribunal does not accept, given the significance of this particular incident, that the applicant would not be able to consistently recall the month in 2009 which he was allegedly abducted and beaten. Further, the Tribunal notes the applicant had with him in the hearing a copy of an article, which he submitted a translation of following the hearing, reporting on this particular incident. The Tribunal notes the date of the newspaper is [in] August 2009. Further, the applicant had submitted to the Department what was purportedly an extract from the information book of the [Location 6] police station which included a statement made by the applicant [in] July 2009 as a witness. The Tribunal does not accept that if the applicant had been the victim of an abduction, which was reported in a paper which he had in his possession, that he would subsequently provide evidence that this incident occurred three months before he had consistently claimed, and as supported by the independent evidence he had to substantiate this claim.

19. The Tribunal also found the applicant’s evidence regarding why he was allegedly abducted to be vague. The applicant claimed that he was suspected of helping a guy to kidnap a girl because the guy worked in a [type of] shop next to the [Trade 3] shop where the applicant worked.  When the Tribunal queried as to what sort of help he was suspected of providing this guy, the applicant stated that they thought he and the other boys had had kidnapped the girl to help the guy. The Tribunal asked the applicant what the association was between the guy who worked in the [type of] shop and the girl. He stated that he did not know anything about it. When asked why they believed he had kidnapped this girl on behalf of this guy, the applicant stated because their shops were next to each other and they spoke to each other so they thought they were friends. The applicant stated that the guy’s name was [Mr B].  He later told the Tribunal the guy took the girl but he did not know anything about why he had taken her. When asked whether they found the girl who had gone missing, he stated that they did, about a month after this incident. He did not know where they found her. When asked if he knew what happened during the time she was missing, he said he did not know. Asked if the girl was with his friend [Mr B] during that time, the applicant stated he had heard she was with him but he did not know if she was or not. As the Tribunal noted in the hearing, the applicant had provided clear evidence up until the hearing that the reason why these people, including the girl’s father [Mr A], was looking for her was because it was suspected she had eloped with the applicant’s friend [Mr B], and that the applicant has assisted with that. However, as discussed above, when asked several times, during the hearing, the reason why he was allegedly abducted, the applicant made no mention of the fact that [Mr A] had suspected he had assisted [Mr B] in eloping with his daughter.    

20. Further, the Tribunal has taken into consideration the witness statement made by the applicant to the [Location 6] police station, submitted to the Department in support of his application, as compared with his oral evidence. The Tribunal notes in the delegate’s decision, it was stated that the applicant identified one of the two men who got out of the van which he was abducted in, as [Mr C]. He stated that he knew it was [Mr C] because he had seen him putting up posters for the Minister. However, in the police complaint he had identified the person as [name]. The Tribunal also noted that he claimed in the hearing that the two men who got out of the van asked him where [name] lived. Yet, in the extract from the [Location 6] police station, it stated that these men asked him where the [name] Church was before grabbing him. Further, the Tribunal put to the applicant that the extract refers to [Mr B] having a prawn farm and nothing about him having [a shop]. While the applicant claimed that was how they wrote it, so what could he do, as the Tribunal put to the applicant, he submitted this report as being evidence of what he allegedly reported to the police and the fact that it is inconsistent with his evidence raises serious concerns about the credibility of his claims.    

21. The Tribunal asked the applicant if he had any other association with [Mr B] other than the fact he worked next door to his [type of] shop during the time he worked as [Trade 3]. The applicant stated that they both went to the same school and then after that they worked in the shops next to each other so they would talk. The Tribunal asked the applicant if he continued to see [Mr B] once he stopped working at the [Trade 3] shop. He stated that he would go there [as a customer]  The Tribunal asked the applicant if he would have described [Mr B] as a friend. He stated not a very close friend; he would go to his shop [as a customer] and if he saw him, he would talk to him. The Tribunal notes that according to the applicant’s evidence in the hearing he worked as [Trade 3] for a short period of time, for a period of one year, from 2006. The Tribunal has difficulty accepting that in 2009, the applicant would be abducted as someone who allegedly had knowledge of [Mr B or Mr A]’s daughter, given on his evidence after he stopped working at the [Trade 3] shop his only association with [Mr B] was as a customer or an acquaintance.   

22. The Tribunal has also had regard to the applicant’s evidence in the hearing in relation to what happened after he was allegedly taken in the van. He explained that when he was taken by these men, a boy from his village came to the shop at the same time and took his motorbike (which he had kept the key in the ignition) to his uncle’s house and told his uncle what happened. He stated that the village people then chased the van and tried to stop it but they were unable to. He stated that the van took a road towards [Town 4] and in [Town 4] there were two policemen near the gate who tried to stop the van but did not. He claimed the boys from his village took a different road and came in front of the van, and the police, but the police ran inside the police station. The village boys tried to stop the van by putting their hands up but it would not stop. The van kept driving and in [Location 6] the police had a barrier in a place called [name]. The [Town 4] police called the [Location 6] police and two police officers came on a bike. At [a certain] temple they stopped the van by parking their bikes in front of it on the road. The Tribunal notes that there was nothing in the applicant’s statutory declaration, or in the delegate’s decision (a copy of which was provided to the Tribunal) regarding a boy seeing him being taken into the van, this boy going to his uncle’s house and telling him about what had happened, the villagers chasing the van and boys from his village pursuing the van to [Town 4 or Location 6]. As the Tribunal put to the applicant, in the delegate’s decision, it was recorded that he had stated that in [name] there was a police barrier which had been blocked off to cause the van to stop and everyone was transferedr to [Location 6] police station. In the extract from the [Location 6] Police station provided by the applicant it stated that while travelling near the [temple], police officers stopped them by a motor bike over taking the van and brought them all to the [Location 6] Police Station. While the applicant claimed that he had mentioned everything at a previous interview in [Australia], as well as all other interviews, as discussed above there is nothing in his statutory declaration or in the delegate’s decision regarding this chase or the police taking him to [Town 4] Police Station where he was questioned by lawyers and then being taken to [Location 6] Police Station.

23. The Tribunal has taken into consideration the copy of the article, with translation, from [a newspaper in] August 2009, submitted by the applicant after the hearing. The Tribunal notes that the details included in the article are not consistent with the applicant’s evidence in the hearing. While the applicant claimed that he was abducted when a van stopped on the side of the road, after he had left a shop, and two men got out of the van and asked him where [name] lived and then put him into the van, the article states that four persons claiming to be intelligence police went to the houses of the men kidnapped and took them away saying that they wanted them for questioning.  

24. The Tribunal has also had regard to the evidence provided by the witness, who claimed to be from the same village as the applicant and was present at the applicant’s uncle’s house when the boy allegedly took the applicant’s bike there and told his uncle about what had happened. The Tribunal notes that according to the witness the applicant was allegedly abducted in April 2009, two or three months before he left the village to start his course in August 2009. While the witness’ evidence was consistent with the applicant’s oral evidence in the hearing regarding when this alleged incident occurred, as discussed above, and with other aspects of the applicant’s evidence in the hearing, the Tribunal notes that it is inconsistent with the applicant’s earlier evidence and the independent evidence submitted by the applicant as to the timing of this particular event. In light of this, and the Tribunal’s other concerns regarding the credibility of the applicant’s claims, the Tribunal places little weight on the evidence provided by the witness.

1. The Tribunal has taken into consideration the applicant’s adviser’s submission at the conclusion of the hearing regarding a number of factors which should be taken into consideration in assessing the Tribunal’s credibility concerns including the applicant’s lack of familiarity with the formal interview process, the fact he comes from a country where he has a lack of trust in authorities which makes it difficult for him to speak to them in Australia, the fact the applicant has been required to speak through an interpreter through the process and the anxiety stemming from the uncertainty and duration of the immigration process. The Tribunal is unclear as to why the applicant would have a lack of trust of the authorities given that the applicant was allegedly saved by the police when he was allegedly abducted and the police pursued a case against his alleged abductors. The Tribunal does not accept that the factors raised by the applicant’s adviser account for the discrepancies in the applicant’s evidence as discussed above, or dispels the Tribunal’s concerns regarding the credibility of his claims.

2. Given the above, the Tribunal does not accept that the applicant was abducted as he claimed. As such, it does not accept that the applicant was beaten whilst he was in the van, including with a pistol, by the girl’s father, [Mr A] or that he was involved in any case against the people who allegedly abducted him. The Tribunal therefore does not accept the applicant’s claim in the hearing that people had come to his village twice or three times and asked people in the village about him. The Tribunal finds it implausible that if these people were interested in him they would not go to the applicant’s parents to locate him, as the applicant claimed he had asked his parents and they had told him no-one had come.  Nor does the Tribunal accept the applicant’s claim that he may face problems because he did not respect the court by coming to Australia. The Tribunal finds the applicant’s claims are not credible and as such, it does not accept that he faces a real chance of serious harm, now or in the reasonably foreseeable future, if he returns to Sri Lanka, from [Mr A], the Minister’s bodyguards or the authorities because of any case that he was involved in as a result of being a victim of an alleged abduction.

3. The applicant claimed that he also experienced problems in Sri Lanka because of his Tamil ethnicity. He stated that when he went for work, going around to different places, they would call him Tamil. He explained that he was the only one who was Tamil and all the other boys were Sinhalese. The applicant stated that it was more like bullying. His name would be used in a way that was making fun of it. He stated that when he would go to get lorry loads of [a certain item], he would have to wait until the end, after all the Sinhalese boys had received their loads. The applicant also claimed that before, during the conflict, if the police stopped him they would keep him for a while. He referred to one occasion when his mother was in hospital and he went to see her at a certain time but they would not let him in. He claimed the police took his identification and made him sit for a while, and as a result he was too late to visit his mother. The applicant confirmed that the checkpoint he was stopped at when travelling on the bus is no longer there. The Tribunal asked the applicant if he was concerned that he would experience any problems on his return to Sri Lanka because of his Tamil ethnicity. The applicant stated not just because he was a Tamil but because he was abducted he would not stay there and would go to another country. The Tribunal asked the applicant if he has any concerns that he would be harmed now, if he went back to Sri Lanka, because he is Tamil. The applicant stated that there is no place for Tamil people in Sri Lanka; they just have to be there. When the Tribunal repeated its question as to whether he believed he would be harmed because he is Tamil, the applicant reiterated that no matter where a person goes in Sri Lanka there is no place for Tamil people to do anything.  As the Tribunal put to the applicant his evidence was that he lived in a mixed Tamil, Sinhalese, Muslim area and he had employment as [Trade 3] and then [Occupation 5] for a number of years. While the Tribunal accepts that during the conflict and for a period of time after its cessation he may have been stopped at checkpoints and his identification checked, the Tribunal does not accept such treatment amounts to serious harm within the meaning of s.91(R)(1). Similarly, the Tribunal accepts that the applicant may have been given his load after the Sinhalese drivers and that he may have been called Tamil by Sinhalese when he was going about his work, but it does not accept that such discrimination constitutes serious harm.

4. The Tribunal has also taken into consideration country information from a range of independent sources about the current situation in Sri Lanka, particularly DFAT Country Information Report for Sri Lanka dated 16 February 2015, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka from both 2010 and 2012, UK Home Office Operation Guidance Note for Sri Lanka dated July 2013 and UK Home Office Operation Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August 2014.  The information suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009.  While UNHCR in their guidance dated 2010 referred to some reports that young ethnic Tamil men from the north and the east may be disproportionately affected by security measures on account of their suspected affiliation with the LTTE, they also stated that there was no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity. In the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, the UNHCR indicates that not all Tamils from northern and eastern Sri Lankan are vulnerable to harm due to imputed links with the Liberation Tigers of Tamil Eelam (LTTE) but that people with “more elaborate links to the LTTE” may require protection. As the Tribunal noted in the hearing, the applicant is not from the north or the east and has not claimed to have had any connection or affiliation with the LTTE or to having being suspected of any involvement with the LTTE,  and there is nothing to suggest that he would be imputed to in the future. As such, the Tribunal does not accept that the applicant falls within the profile of those Tamils who would be at risk of serious harm.

5. The Tribunal finds that the country information before it, including information provided by the applicant’s previous adviser, does not suggest that all Tamils, including Tamils in Western Sri Lanka, face a real chance of suffering serious harm solely on account of their Tamil ethnicity.  The Tribunal has also taken into consideration information provided from DFAT in their report, cited above, that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’) including in relation to access to education, employment or access to housing and that there is only a low-level of discrimination in the implementation of laws and policies and more generally, a moderate level of discrimination between particular ethnic groups (societal discrimination), largely as a result of the civil conflict and its causes. Based on the applicant’s past experiences in Sri Lanka, his individual circumstances  and the country information put to the applicant, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his Tamil ethnicity including being perceived as supporter of the LTTE based on his Tamil race or his membership of a particular social group of “young Tamil males”.

6. The Tribunal noted that it had been raised in the submission from the applicant’s previous adviser that the applicant is Catholic. The applicant confirmed he is a Catholic and that he practised his religion in Sri Lanka. When asked if he ever experienced any problems because of his religion, the applicant stated no. The Tribunal asked the applicant if he had any concern that he would be harmed because of his religion or as a Catholic. He stated no.

7. The Tribunal notes according to DFAT’s report dated 16 February 2015, 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. It noted that DFAT assessed there is little official discrimination on the basis of religion. There are no official laws or policies that discriminate on the basis of religion. It was also provided 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. The majority of incidents, where perpetrators were identified, were instances of Sinhala Buddhist attacks on other religious places of worship. In April 2014, the former Government established a special police unit to investigate ‘complaints relating to religious matters’.  The Tribunal noted that DFAT assessed 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. The Tribunal finds on the information before it, and the applicant’s evidence that he was able to practise his Catholic religion and did not experience problems in the past as a Catholic, that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his religion.

8. The Tribunal asked the applicant if there were any other reasons why he feared returning to Sri Lanka. The applicant stated no. When asked about his illegal departure and whether he had any concerns related to this, the applicant stated just like everyone they will put him in jail but he does not know for how many days. The Tribunal asked the applicant if he had any fear he would be harmed because he departed Sri  Lanka illegally. He stated yes because it happens to everyone. When asked what happens, he stated he may be put in jail; he did not know what they would do.

9. The Tribunal has considered whether the applicant will face persecution as a result of his illegal departure from the country, if returned to Sri Lanka. 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 at the airport (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. The Tribunal does not accept on the information before it that the applicant would face mistreatment from the authorities whilst he is held in remand given that he does not have an adverse profile.

10. 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 parents and [sibling] in Sri Lanka who can stand as guarantor for him and there is nothing to suggest that they would not do so. The Tribunal therefore does not accept looking at the applicant’s particular circumstances and the country information, he would face extended administrative detention on his return.

11. 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. 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. Therefore 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.

12. The Tribunal refers to the country information it put to the applicant in the hearing that 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. As the Tribunal put to the applicant in the hearing, this law is a national law 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 therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

13. The Tribunal notes in the submission from the applicant’s previous adviser, there was reference to information regarding what may happen once the applicant goes through the legal process as described above and returns to his home area. When asked if he believed he would face problems once he was released into the community, the applicant stated that he could not say whether he would face any problems or not. He stated that he may face problems during election time. The Tribunal asked the applicant why he would face problems at election time. He stated because they are already angry with him, they may do something during election time as this is what happens in the country. The Tribunal queried whether there were elections between 2009 and 2012 when he left the country. He stated that there were elections but he did not go out because his mother would not let him. When the Tribunal queried whether he worked during that period, the applicant stated that on election day he did not work but the other days he did and he would not go out at night.

14. As the Tribunal put to the applicant, the information before it suggests that depending where a person may return, such as the north of the country, people may be required to register their presence with the authorities. Returnees who departed the country regardless of where they are from, may be visited at their homes for subsequent interview by the CID or police or may be monitored. Based on the information before it, the Tribunal accepts as possible that after the applicant is released on bail and has returned to his village, there may be a follow up visit by the police or the CID to his home for a subsequent interview, however the Tribunal does not find such questioning or monitoring constitutes serious harm within the meaning of s.91R(1). Taking into consideration the applicant’s profile as someone who has not been of interest to the authorities in the past for any reason including for having suspected links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of being detained once he is released in the community.

15. The Tribunal notes in the submission from the applicant’s previous adviser it was also claimed that the applicant fears persecution for reasons of his membership of a particular social group of failed asylum seekers. When asked what he believes may happen to him if he returned to Sri Lanka as a failed asylum seeker, the applicant stated that he does not know what he could say about that. The Tribunal has considered the information from DFAT it put to the applicant in the hearing, which noted that significant numbers of Tamils have been returned involuntarily to Sri Lanka and from other countries and the independent sources do not indicate that a returnee identified as someone who sought asylum in Australia or another western country, would face a real chance of serious harm for this reason.  As the Tribunal put to the applicant in the hearing, various sources including DFAT, other foreign governments and UNHCR  regarding people returning to Sri Lanka as failed asylum seekers and the treatment they face, provides that the screening process is the same for all person returning to the country, whether voluntarily or by escort and the process is not impacted by ethnicity. The reports suggest that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile. While the Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and claimed to have never been involved with the LTTE or assisted them in any way or to have been suspected of having any association with the LTTE, the Tribunal finds that the applicant would be released without further interest and he would not face a real chance of persecution as failed asylum seeker/ Tamil failed asylum seeker or returnee/Tamil returnee.

16. Although the Tribunal notes, as it did in the hearing, that there are some reports, as cited in the submission from the applicant’s previous adviser, 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 had particular adverse profiles. The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities.

17. Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who was of no interest to the authorities and was not suspected of having links with the LTTE,  the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, as a failed asylum seeker or a Tamil failed asylum seeker or a returnee or Tamil returnee.

1. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the army, the CID, any other authorities or anyone else because of his Tamil ethnicity, an imputed political opinion of supporting the LTTE and opposition to the government of Sri Lanka based on his Tamil ethnicity, or his membership of the particular social groups of “failed asylum seekers returning to Sri Lanka or failed Tamil asylum seekers” or “ young Tamil males”. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

2. 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).

3. 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.

4. 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 that the applicant was abducted in 2009 by the father of a girl who had gone missing (allegedly to elope with the applicant’s friend Nihal) and the bodyguards of a Minister and that a case was brought by the police against the people responsible for allegedly abducting him. 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 the bodyguards, the Minister or the father of the girl or the authorities because he did not respect the court.

5. In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity or his membership of a particular social group of young Tamil males or any combination of these factors.  The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within.

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 (depending on when he arrives in the country) 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 PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above, that the applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand.

8. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. 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, as claimed in the submission of the applicant’s previous adviser.

9. The Tribunal is also not satisfied on the country information that there is a real risk the applicant would face significant harm on arrival in Sri Lanka or after his release into the community 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 or Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. It also accepts as possible that he may face further questioning and/or monitoring after being released into the community.  However the Tribunal does not accept that the process of questioning or any surveillance of the applicant 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 or monitoring 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 does not satisfy 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