1319653 (Refugee)

[2015] AATA 3966

1319653 (Refugee) [2015] AATA 3966 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1319653

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:22 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 22 December 2015 at 1:12pm

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

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

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention 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.  A summary of the relevant law is attached.

6. The Tribunal notes that the Department of Foreign Affairs and Trade (DFAT) released an updated country information report on Sri Lanka on 18 December 2015, after the hearing, which the Tribunal has had regard to in reaching its decision as set out below.  This report replaces the previous DFAT report released on Sri Lanka, published on 16 February 2015, and the October 2014 DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam (LTTE).  At hearing the Tribunal discussed with the applicant relevant information contained in the previous reports, in particular in regard to his claims related to his illegal departure and concerns about being a failed asylum seeker from a western country.  The information contained in the new report on these matters is consistent and confirms the information contained in the previous report. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Refugee assessment

8. The applicant – a [age]  year old single Sinhalese man from [Puttalam district] in Sri Lanka - claims to fear serious harm on return to Sri Lanka at the hands of members of his father’s extended family about access to his father’s land.  He also fears harm from the authorities because he fled to a western country seeking asylum.  The Tribunal has also considered whether the applicant has a well-founded fear of persecution on return to Sri Lanka because he departed Sri Lanka illegally (in June 2012).

   Fear of father’s family members

9. It is submitted that the applicant fears serious harm from members of his father’s extended family members who consider him an impediment to claiming his father’s land in [Puttalam district].  It has been submitted that the applicant’s fears are Convention related because of his membership of the particular social group of a ‘member of a particular family unit’ (that is of his mother and father). 

10. The applicant presented his claims to the Department in a statutory declaration dated [in] November 2012 as follows:

    Why I left my home country:

    I fled my home country because I feared for my life.  I feared that members of my father’s extended family were going to kill me.

    After my mother’s death my father’s extended family began giving me a lot of trouble.  You see, they never liked my mother and didn’t want my father to marry her.   She came from a relatively poor family, whilst my father and his family were quite well off.  They threatened me and would often humiliate me in front of others.  They also confiscated our land from us, which resulted in my family splitting up.  They had a lot of political power because they were wealthy.  There was nothing I could do.

    In or about January this year, I made two complaints to the police about my situation but nothing was done about it.  The police didn’t take any action because my father’s family had a lot political influence.  Not long after I file these complaints I began receiving threats on my life by unknown thugs.  These thugs were told to harass and threaten me by my father’s family.  They had found out about the complaints I made to the police.  On one occasion the thugs beat me up.  They said they were going to kill me and that I was scum.  This is when I moved to my fiancé’s house.  I was very scared for my life and sought refuge with her family.  My father had moved to another area for work and didn’t care about me.  Even when I raised the issues of harassment by his family with him, he didn’t care and did nothing about it.

    Although my fiancé’s family were able to protect me, I didn’t want to put their lives in danger any longer. [In] June this year I fled Sri Lanka and came to Australia.

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

    I fear being killed if I go back to my home country.

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

    I think that my father’s extended family will harm and mistreat me if I return.  I also think that the authorities will harm and mistreat me if I go back.

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

    I believe they will harm and mistreat me because I am entitled to the land owned by my father and they want it back. I believe the authorities will harm and mistreat me because I have fled to a western country seeking asylum.

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

    The authorities in my home country will not protect me if I return because my father’s extended family is wealthy and have a lot of political influence.  I already went to the police and complained but nothing was done about it.  Also, the authorities will not offer me protection because I fled Sri Lanka illegally and have since sought asylum in a western country.

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

    I think I will suffer significant harm if I return to Sri Lanka because I have now claimed protection against my home country.  I believe I will continue to be arbitrarily deprived of my life and suffer cruel and inhumane treatment at the hands of my father’s extended family as well as the authorities.

11. The applicant gave oral evidence about past problems he claims to have experienced from members of his father’s extended family, including explaining why he fears harm from these people on return to Sri Lanka in the foreseeable future.  He told the Tribunal that his problems started after his mother’s death [in] December 2010 when his ‘[relatives]’– that is [Mr A] ([details of relationship]) and [Mr B] ([details of relationship]) – threatened him to leave so that they could take over the applicant’s father’s land and the family home, which the applicant and his father and siblings were living in at the time.  The applicant explained that his father owns two pieces of land in [Puttalam district], which he inherited from the applicant’s grandfather: one [on] about [number] perches[1] of land and the other about [number] perches[2].  The applicant said his grandfather, who was very fond of the applicant’s father, gave his father these two pieces of land as well as the family home whilst [Mr A] and [Mr B] only received one piece of land each which made them unhappy and jealous.

    [1] [Number] square metres,

    [2] [Number] square metres, >

    The applicant told the Tribunal that after his mother died [Mr A] and [Mr B] threatened the applicant – the eldest in the family – first to leave the family home and then that they would kill him. The first time he was threatened was when the applicant was near the market one day at the beginning of 2011 [Mr A] and some other people (whom the applicant did not recognise) told the applicant not to live at his house and threatened to kill him.  The applicant told his father but he did nothing.  The applicant said his father did not care.

12. The applicant said not long after [Mr A] threatened him at the market [Mr A] and some men came to his house and again [Mr A] told him to leave home, told him the property did not belong to him and slapped him on the face.  He did not tell anyone that time, including the police because [Mr A] had a lot of political influence and he thought it would be a waste of time.  The applicant explained that at that time both [Mr A] and [Mr B] worked for a [political figure] – [name deleted] – by helping his election campaign. 

13. The third time the applicant was threatened was by [Mr B] at the applicant’s home about two or three months after the last incident.  [Mr B] arrived, under the influence of alcohol, and with other men holding a helmet and weapons (steel bar), told the applicant to leave.   The applicant then left home and moved in to his ex-fiancé’s parents’ [house] around mid-2011.  He said that he was no longer harassed or threatened, because they could not find him. Asked why they could not find him (given his fiancé lived in the same town) the applicant said because they did not know that he had a connection with a girl and also because he lived inside the house most of the time. He continued working but at different work sites.  Having no one to tell about these threats, no proper place to live, and feeling mentally down the applicant said he decided to make arrangements to leave Sri Lanka.  He said he did not experience any further threats from [Mr A] or [Mr B] before he departed Sri Lanka.

14. When asked why he was the target of [Mr A] and [Mr B]’s threats in order to take over the land in question and not his father, the applicant said that his father was an alcoholic and if the applicant was removed from the scene it would be easy for them to reach him.  The representative submitted at hearing that it is important to consider that as the eldest son of his family, he will inherit his father’s land and the applicant has looked after his family in the past because of his father’s issues (as an alcoholic).

15. When asked about the current status of the land in question, the applicant said a friend of his told him about six months ago that his ‘[relatives]’ have taken over the [number] perches of empty land.  Asked how he knows that, the applicant replied because the applicant’s father had told someone he gave the land to his [relative] and because the applicant’s friend had seen his relative] visiting the land. 

16. When asked why [Mr A] and [Mr B] would want to harm the applicant on return to Sri Lanka, the applicant said if they find out that he has been living in Australia, they will create problems on his return.  He noted that his mental condition was bad as a result of their harassment when he lived there and does not want it to deteriorate on return. The Tribunal asked the applicant if the issue is that he may lay claim to his father’s land on return.  The applicant replied that sometime they may have taken over the land and achieved their goals but if he returns he will have no place to live or work, noting that he has been happy living in Australia.

17. The Tribunal notes that apart from the applicant’s assertions he has not provided any documentary evidence confirming that his father owns two parcels of land as claimed.  His evidence about the actual size of the land was vague, only providing an estimate of the size of land.  He was unsure about the details of the land contained in the deeds, but said the documents are with his father (although he was unable to say where his father was exactly).   He was also unsure about the current status of the land, stating that his father still owned the land when he left Sri Lanka but that a friend of his had told him about six months ago that he had seen one of his [relative]’s visiting one parcel of land (the [number] perches) and that a friend had purportedly told him that the applicant’s father advised that he had given the land to his [relative], as mentioned.  Despite these concerns, the Tribunal is willing to accept that the applicant’s father, at the time the applicant left Sri Lanka, owned two parcels of [land], which the applicant is entitled to inherit as the eldest child of his family.  However for the reasons that follow the Tribunal has concerns about the applicant’s claims to have been threatened, harmed and harassed by members of his father’s extended family.

18. First, the applicant provided inconsistent evidence in his oral evidence to the Tribunal and his oral evidence to the Department, as set out in the delegate’s decision record[3], about the circumstances and perpetrators of these alleged threats.  That is at the Departmental interview the delegate records the applicant stating that after he returned to his home [in] 2011 (after living with his uncle about 20 kilometres away) he claimed that his father allowed his [sibling] and [family] to live in part of their house but they wanted to own the entire house and wanted to get rid of him.  He also claimed that he was attacked three times in the period from June 2011 to December 2011 by ‘thugs’ whom he had seen drinking with his father’s [sibling] and [husband] at this house: the first time thugs grabbed him by his collar and told him they would kill him and he had to leave (they also slapped him on the face); and the same thing happened two times near his house when three people on bikes threatened him and the second time the same thing happened.  This account differs in significant respects from what the applicant told the Tribunal (as set out above) in terms of the timeframe and who purportedly carried out the threats and the particular circumstances. That is the applicant said the first time he was threatened by [Mr A] (with some others) at the market at the beginning of 2011; the second time – not long after the threat at the market – [Mr A] (with some others) threatened the applicant at his house, told him to leave, and slapped him on the face; and the third time – about two or so months after the second incident – [Mr B] (with other men, who were purportedly armed) came to the applicant’s house and threatened him. 

    [3] A copy of which the applicant provided to the Tribunal for the purposes of the review.

19. The Tribunal notes further that the applicant made no mention of being threatened or harmed by ‘thugs’ at the Tribunal hearing, even when specifically asked, which is also inconsistent with the applicant’s written and oral claims to the Department[4].

    [4] In a statutory declaration date [November] 2012

20. Second, the Tribunal did not find the applicant’s evidence about making complaints to the police credible for the following reasons. Specifically, in his statutory declaration to the Department the applicant states, among other things, that in or about January “this year” (2012) he made two complaints to the police about his situation but nothing was done about it; the police did not take any action because his father’s family had a lot of political influence; that not long after he filed these complaints he began receiving threats on his life by ‘unknown thugs’; that these thugs were told to harass and threaten him by his father’s family; they had found out about the complaints he made to the police; on one occasion they beat him up; and they said they were going to kill him and he was scum.  Asked about the police complaints at the Tribunal hearing the applicant said he did complain to the police about his problems on two occasions during that period, but they did not do anything and he considers they must have been friends (of [Mr A] and [Mr B]).  He was unable to recall exactly when he made the complaints, but confirmed they were in relation to the threats he received from [Mr A] and [Mr B].  Asked why he waited until January 2012 to make the complaints (given he claimed the threats occurred in early 2011), the applicant said because he feared for his life and thought complaining to the police may do more harm.  However later someone told him it is better to make the complaints.  Given this delay in making the complaints to the police, the applicant’s vague evidence about when he made the complaints and why specifically, and the applicant’s contrary oral evidence earlier in the hearing that he considered it futile at the time to complain to the police because his ‘[relatives]’ had political influence, the Tribunal does not accept the applicant’s claims to have made two complaints to the police in early 2012 and considers he fabricated this aspect of his claims.

21. The Tribunal has reached this conclusion also because his claims in his statutory declaration that ‘thugs’ came to know about the police complaints and threatened him, harassed his family and beat him up on one occasion were not reflected in his oral evidence at hearing where he made no mention of thugs, as mentioned.  When the Tribunal asked him about the beating, for example, at hearing the applicant said he was referring to the incident when [Mr A] came to his house (with others) and slapped him on the face.

22. Given these concerns, the Tribunal does not accept that the applicant was harassed, threatened, humiliated or beaten by any members of his father’s extended family as claimed, or by ‘unknown thugs’ possibly linked to his father’s extended family in Sri Lanka in the past on account of making complaints to the police, in relation to their disapproval of his mother, or the dispute over his father’s land or for any other reason. 

23. Given this finding, and for reasons set out above, the Tribunal finds that the applicant does not face a real chance of serious harm from members of his father’s extended family for any Convention reason on return to Sri Lanka now or in the reasonably foreseeable future.

    Fear of ex-fiancé’s mother

24. At the Tribunal hearing the applicant said he is also afraid of returning to Sri Lanka following the breakdown of his relationship with his fiancé, who also lives in [Puttalam District].  He told the Tribunal that after a friend told him his fiancé was having an affair he broke off the engagement.  However afterwards his ex-fiancé’s mother telephoned him and threatened she would kill him if he did not return and marry her daughter, pointing out that she had paid for his journey to Australia and that he owed her. He said this took place about six months ago (after the delegate’s decision) which explains why he raised it for the first time at the Tribunal hearing. 

25. The Tribunal accepts the applicant has ended his relationship with his fiancé and that this may have upset his ex-fiancé’s mother to some extent. However the Tribunal does not accept the applicant’s claims that his ex-fiancé’s mother threatened to kill him because he broke off his relationship with her daughter, finding the claim far-fetched and implausible.  At the Tribunal hearing the applicant was not able to adequately explain why his ex-fiancé’s mother would have threatened to kill him in such circumstances, or why his ex-fiancé could not marry someone else, apart from stating that he does not know the reason, except that she helped him leave.  On this last point the Tribunal notes that the applicant gave evidence that his ex-fiancé’s mother paid for his trip to Australia but that he has paid it all back.   Given the lack of a plausible explanation as to why his ex-fiancé’s mother would threaten to kill him, the Tribunal is of the view that the applicant embellished this aspect of his claims.  The Tribunal therefore does not find that the applicant faces a real chance of persecution from his ex-fiancé’s mother on return to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal finds his fears of persecution on return to Sri Lanka on this basis are not well founded.  

    Failed asylum seeker returning from a Western country

1. It is submitted that there is a real chance the applicant would be seriously harmed on return to Sri Lanka on account of his membership of a particular social group of ‘returnee asylum seeker/returnee from a Western country’. 

2. The representative has provided a submission to the Tribunal on this matter, referring to country information to support her contention that both voluntary and forced returnees are at risk of harm; that individuals who are arrested are often required to wait a prolonged period in detention prior to remand; and that torture has been a commonly used mechanism for inflicting punishment against detainees. It is submitted that the applicant will be exposed to such treatment if he returns.

3. The Tribunal has had regard to these submissions and relevant country information and acknowledges the concerns articulated about what might happen to returnees, including failed asylum seekers from a Western country, if detained.  However, for the following reasons the Tribunal does not accept that the applicant faces a real chance of persecution on this basis on return to Sri Lanka now or in the reasonably foreseeable future.

4. The Tribunal accepts that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka and the Tribunal also accepts that he will not return to Sri Lanka voluntarily.

5. As discussed with the applicant at hearing, Australia’s Department of Foreign Affairs and Trade (DFAT) assesses that returnees to Sri Lanka are treated according to standard procedures, regardless of their race or religion.  DFAT also report that they are not subject to mistreatment during their processing at the airport[5].  Further, the UK Home Office reports that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[6]   It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

   [5] DFAT Country Report Sri Lanka, 18 December 2015 at 5.31

   [6] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5

6. The Tribunal accepts that when the applicant returns to his [home], his arrival will be noted and he may be questioned by the Sri Lankan authorities.  However given the Tribunal’s findings above that he is not politically active or anti-government, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis that he is a returnee from a Western country, and someone who has sought asylum in Australia.

   Illegal departure

7. The Tribunal has considered whether the applicant will face a real chance of serious harm as a result of his illegal departure from the country, if returned to Sri Lanka.

8. 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 (I&E Act).  This is a law of general application and applies to everyone who breaches it and there is nothing in the information before the Tribunal 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 on return to Sri Lanka is prosecution under a law of general application and not persecution within the meaning of the Convention.

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

10. 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 applicant told the Tribunal that he is essentially estranged from his family members in Sri Lanka: specifically that [a sibling] lives with [Mr B] since his mother died and refuses to allow him to contact [the sibling], and that he has no contact with [another sibling] or father.  The Tribunal accepts the applicant’s evidence in this respect.  However it notes on the applicant’s own oral evidence that he has a maternal uncle who he has lived with and who has supported him in the past (by giving him a [job] and then financially supporting him when the [work] finished and the applicant was living at his ex-fiancé’s parents’ house from late 2011 to mid-2012), who the Tribunal considers would act as a guarantor for the applicant on return.   At the hearing the applicant said he does not think he is in a position to help him because he has not had contact with his maternal uncle since he left Sri Lanka and he thinks he is now married.  Even if the Tribunal accepts that the applicant has not been in touch with his maternal uncle since his arrival in Australia, given his history of support to the applicant, the Tribunal is satisfied that he would act as guarantor on the applicant’s return to Sri Lanka.  The fact that his uncle may now be married does not alter that finding.

11. At hearing the representative submitted that whilst the applicant is in remand on return to Sri Lanka the authorities may alert his family members that he has returned whom he fears if they attempt to contact them.  Whilst the Tribunal accepts that may occur, for reasons set out above it has found that the applicant does not face a real chance of persecution on return to Sri Lanka from these family members. 

12. Taking into account these considerations, the Tribunal does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution. 

13. 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.  As discussed with the applicant at the hearing, 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. DFAT state that fine amounts vary on a case-by-case basis and can be paid by instalment and that if a person pleads guilty they will be fined and are then free to go.  In most cases, when a returnee pleads not guilty, they are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor.[7] 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 such as his maternal uncle 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.

    [7] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.32 – 5.33

14. At the Tribunal hearing when asked if he has any fears on return to Sri Lanka on the basis of his illegal departure and/or as a failed asylum seeker the applicant replied “no”.  He told the Tribunal that he has nothing to say, except that he has no one and no place in Sri Lanka, and he has been happy in Australia.

15. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system.[8]  However, given what the Tribunal accepts of the applicant’s profile, the Tribunal finds the chances that the applicant will be targeted and harmed for any reason in the context of a very brief stay in remand pending bail remote. The Tribunal does not accept that the applicant will be personally targeted for harm in prison. The Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand, and the Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

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

16. For these reasons, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees – such as the applicant - who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

    Conclusion – Refugee grounds

17. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

18. 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).

    Complementary protection grounds

19. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

20. It is submitted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk that the applicant would suffer significant harm in terms of arbitrary deprivation of life (fearful of being killed by his father’s family members); torture (physical and mental torture by his father’s family members and by the authorities as failed asylum seeker); and cruel, inhuman or degrading treatment or punishment (harassed by his father’s family following the death of his mother, compelled to live in fear without support of family, and he will have no family support or anyone he can rely on which will result in humiliation for him within the community). 

21. At the Tribunal hearing the representative submitted that the applicant is concerned his uncles would intentionally inflict harm against him in order to coerce him to give them the land, which amounts to torture, or inhuman treatment or punishment. 

22. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his membership of a particular social group of his father’s ‘family’ and ‘failed asylum seekers’, or the fact that he departed Sri Lanka illegally. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[9]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    [9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

23. In her written submission the representative states, among other things, that the applicant will be detained on return to Sri Lanka because of his irregular departure, and there is a real risk that whilst detained he will experience significant harm.  She refers to country information[10] about reports of torture, abusive practices against persons in custody and poor prison conditions, among other things.

    [10] UK Home Office Report, July 2011

24. The Tribunal has had careful regard to these submissions as well as the applicant’s evidence about his concerns in this respect.  For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  In view of the DFAT advice cited above, the Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.  The Tribunal has found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine.  There is nothing to suggest on the evidence before it that the applicant (or his maternal uncle members) will be unable to pay such a fine if it is imposed upon him.  Nor does it accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he would spend on remand awaiting a bail hearing.  The Tribunal has accepted that prison conditions in Sri Lanka are generally poor, but it does not accept that there is a real risk that the applicant would be subject to particularly harsh prison conditions to constitute significant harm (such as a violation of Article 7 of the ICCPR as set out in PAM3 Refugee and humanitarian – Refugee Law Guidelines) while on remand for a short period of time as a result of those conditions. 

25. For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSION

26. 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).

27. 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).

28. 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

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

    Nicole Burns
    Member

    
    

    Attachment – Summary of 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.

    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.

    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’).

    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.