1319791 (Refugee) - [2015] AATA 3186

1319791 (Refugee) [2015] AATA 3186 (15 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1319791
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Andrew Mullin
DATE:15 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the Applicant a Protection visa.
Statement made on 15 July 2015 at 12:18pm

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

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] December 2013. The delegate refused to grant the visa [in] December 2013 and on 23 December 2013 the Applicant applied to the Tribunal for review of the delegate’s decision.
The Applicant was represented in relation to the review by his registered migration agent.
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.
CLAIMS AND EVIDENCE
The Tribunal has before it the Departmental and Tribunal files relating to the Applicant and the material referred to in the delegate’s decision, together with other material available to it from a range of sources.[1]
[1] The Department file includes a record of an entry interview attended by the Applicant [in] October 2012 and an audio recording of a protection visa interview [in] September 2013.
In his protection visa application and an accompanying statement the Applicant claims, in summary:
·He was born in [Jaffna], Sri Lanka, in [year] and lived in an area ‘near [Jaffna] from 1995 to July 2012. His ethnicity is Tamil and he is a Protestant Christian by religion. He received a total of [number] years of formal education in Sri Lanka including study from 2009 to 2012 at [a] University. He was employed as a [occupation] in Jaffna from 2008 to 2010 and for two or three months in 2011 as a helper in a [company] in Colombo. He was unemployed after October 2011. He is unmarried and his parents [and siblings] live in Sri Lanka.
·A close friend named [Mr A] was shot by the army in August 2006, shortly after a bomb blast in the area. The CID came to the Applicant’s house the next day to interrogate him and revealed that [Mr A] was shot because they believed he belonged to the LTTE and was involved in the bomb blast. They kept asking questions about the LTTE, wanting to establish a connection with him. They then left.
·In January 2007 the CID interrogated five of his best friends and returned to his house to carry out more investigations. They had some bombs with them and wanted to know if he and his friends were involved with them. After the interrogation they left, threatening that he and his friends would be picked up by a white van and would not be left alive.
·In July 2007 he was asked to report to [a] camp, with five of his friends. He was taken to a room full of armed men and questioned about bombs. He was warned that if he did not confess where [Mr A] had hidden the rest of the bombs he would be blamed. He denied any connection with bombs and was released but in the following years he was subjected to interrogation nearly fifteen times. Every time a bomb was exploded the CID and army would come to his house and threaten him over his links with [Mr A]. He lived in constant fear.
·In August 2011 he began working in a [company] in Colombo but was given only a [certain] job and was subjected to taunts and called names like ‘Tiger’ and ‘Tamil.’ He was paid less than all the Sinhalese workers.
·In June 2012, after a bomb was found in his village, the army interrogated all the youths. He was asked to report to [a] camp the next day. Army personnel questioned him about the bomb and, after he denied any connection with it, beat him for an hour. They told him that as some of his family members were from former LTTE [strongholds] they could have helped him obtain and set bombs. They beat him further and warned that if any more bombs were found he would be shot like his friend.
·Following this incident his parents decided it was not safe for him to remain in Sri Lanka and they arranged for him to come to Australia. He left in July 2012, even though he was still studying at university.
·After his departure for Australia the CID visited his house to ask about him. His parents told them he had gone to Australia. The CID said they would handle his case ‘properly’ when he returned and would punish him severely.
·He fears that if he returned to Sri Lanka he would be taken away by the authorities and tortured and killed. They know he left the country illegally and that he is in Australia. He has no protection in Sri Lanka as a Tamil. The authorities discriminated against him many times, beat him up and threatened him. Even when he worked he received insults.
·He cannot find safety by relocating as the army and CID control the whole country. The authorities are the agents of the persecution he fears and they will not give him protection.
Together with the protection visa the Applicant provided photocopies of:
·Two untranslated Sri Lankan birth certificates.
·The Applicant’s family registration document.
·A certificate of residence and character for the [Applicant].
·A Sri Lankan driving licence issued in the Applicant’s name.
·Records relating to the Applicant’s academic career at [a] College, [another] College and [a] University.
·A letter dated [September] 2012 on the letterhead of [a] Church [in] Jaffna, signed by the Rev. [name] as President. The writer states that the Applicant has been a member of the Church for many years. He is an ‘innocent boy’ whose friend [Mr A] was shot dead during the war in front of the Church by an unidentified group. ‘After this incident I observed that [the applicant] joins the congregation with fear and panic. He is in fear to be in Jaffna.’
The Applicant added to his claims at a protection visa interview [in] September 2013, relevantly as follows:
·His questioning by the CID, on about fifteen occasions since the death of his friend in 2006, occurred in his home with his family members present. On the last such occasion, about two months before he left Sri Lanka, he was asked to attend the army camp where he and his friends were interrogated and beaten. He was hit on the shoulder with a gun butt and his face was slapped.
·Asked about the frequency of the bomb blasts which occasioned these interrogations he said they happened irregularly, sometimes each month and sometimes every three months. Asked when the last such blast had occurred he said that about two months before he left Sri Lanka the army found some weapons and were trying to catch him and his friends, causing him to leave in fear. When it was put to him that there had not been any terrorist attacks since the end of the civil war in May 2009 he then said the last bomb blast was in 2008. He said he had only been questioned in the army camp on one occasion, after the army had found weapons.
·The authorities were also suspicious of him because he was a fisherman and they believed he could have been smuggling goods. When it was put to him that this employment was not reflected in his protection visa application he said he went fishing during his school holidays. When it was put to him that his education finished in 2007 he said he had continued fishing during breaks in 2010, 2011 and 2012 and confirmed that he was studying externally, at the [University], at the time.
On 10 February 2014 the Tribunal received a submission from the advisor canvassing legal issues and citing a range of country information on human rights conditions in Sri Lanka, in particular relating to the country’s Tamil minority.[2] The advisor outlines the Applicant’s claims and submits that he fears persecution in Sri Lanka on the Convention grounds of his Tamil race, his imputed political opinion adverse to the government and supportive of the LTTE and his membership of the particular social groups consisting of ‘failed asylum seekers,’ and ‘young Tamil males from the north of Sri Lanka.’ He also meets the criteria for complementary protection as there is a real risk that, if returned to Sri Lanka, he would suffer arbitrary deprivation of life, torture, or cruel, degrading and inhuman treatment or punishment.
[2] The material cited includes media articles; Tribunal decisions in other cases; and reporting from Amnesty International, Minority Rights Group International, International Crisis Group, Integrated Regional Information Networks, Human Rights Watch, the United Kingdom Home Office, Freedom from Torture and the United States State Department.
A copy of the delegate’s decision record was provided to the Tribunal with the submission.
The advisor provided a further submission on 20 April 2015 citing additional country information on human rights in Sri Lanka, including media articles and reporting by Freedom from Torture, the Minority Rights Group, Amnesty International, DFAT and the Bar Human Rights Committee of England and Wales.
Tribunal hearing
The Applicant appeared before the Tribunal on 22 April 2015, by video [link], 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 advisor attended the hearing by telephone [link].
The Applicant’s evidence was, in summary:
·He left Sri Lanka because his friend [Mr A], was shot and killed in August 2006. Asked why this would have made him leave the country six years later he said he was working in a [details deleted] from 2007. The CID and army began questioning and harassing him about the incident. They suspected that, as he was close to his friend, he was involved with him in bombings. His friend was involved with the LTTE and placed bombs in areas where the army travelled. He also transported weapons for them. There was a bombing in June 2006 near a temple in [a certain area] in which [army] people were killed.
·[Mr A] was from the same village and was [age] years old at the time of his death – five years older than he. His parents are still living in the village. Asked how they had known each other he said they both played cricket. Asked if he had known [Mr A] was transporting weapons for the LTTE and planting bombs he said he did not; had he known this he would not have associated with him. Asked how it was that he now knew about this LTTE involvement he said it was revealed after [Mr A’s] death - the CID told him about it when they were questioning him. They also revealed they had found weapons in [Mr A’s] vehicle.
·Asked again about his knowledge of [Mr A’s] LTTE activities he said he had been studying for his A levels and only associated with [Mr A] when he played cricket with him on weekends. I noted that this seemed to be different from his earlier evidence that he and [Mr A] were close friends. He said he had to attend school and would meet [Mr A] when playing cricket afterwards. [Mr A] had shown no signs of being involved in LTTE activities. He agreed his only reason for believing this involvement occurred was that the CID told him of it.
·He confirmed his claim that when weapons (grenades and bombs) were found in a [village] in July 2012 he was taken to [a] camp where he was questioned and assaulted.
·Asked what he feared would happen if he returned to Sri Lanka he said that after he arrived in Australia the CID came to his house and made threats to harm him on return. He feared they would not allow him to live independently; he would be unable to move freely and would be subjected to constant questioning and harassment. They always accused him of knowing who had planted bombs.
·Asked if he feared harm for any other reason he said Tamils are treated as second-class citizens and have no rights. He had suffered discrimination even during the three months he worked in Colombo in 2010, receiving less pay than Sinhalese and being called ‘Tiger.’
·Regarding his circumstances in Sri Lanka he confirmed he lived in his family home in [certain area in] Jaffna, up to the time he left for Australia. His parents, grandmothers [and siblings] are living in the house. His father works as a fisherman and his [sibling] is employed as a [occupation]. Asked how he had found the money for his travel to Australia he said he sold his motorcycle and some jewellery belonging to his [family]. Asked about his employment he said that in addition to working for three months in Colombo he had worked as a fisherman with a friend and, from 2007 to 2010, as a [occupation] in a [workplace] while studying at [University].
·Asked when it was that the CID first questioned him about the bombing he said it was two weeks after his friend was shot, at the beginning of September 2006. They came to his home and took him to the camp in a pickup truck. He was placed in a dark room, surrounded by armed soldiers, and asked how he knew [Mr A]. They warned him not to tell lies and beat him. His family came to the camp, shouting and crying, and he was released on condition that he was not to leave the area.
·He confirmed his claim to have been questioned two weeks after [Mr A’s] death and again in January 2007, when a bomb was found. Asked about this second incident he said there was a bomb blast in [a location] and, together with four or five of his friends, he was asked what he knew about the incident. He was again beaten.
·Asked if he had suffered any other harm from the army or CID he said whenever there was an incident he would be taken into the army camp for questioning. Sometimes they would come to his home to threaten him. There were altogether about fifteen such incidents, about five of which occurred during visits to the house. The last occasion when he was taken to the camp for questioning was in 2012 when a bomb was found in a well.
·I noted that in his written statement he claimed his friend [Mr A] was shot and killed by the army in August 2006, shortly after a bomb blast. The CID had come to his house the next day and interrogated him over his close friendship with [Mr A], who was involved with the LTTE and responsible for the blast. After asking him about these matters they left. I put to him this was inconsistent with his claim earlier in the hearing that his first contact with the CID occurred two weeks after [Mr A’s] death and that it did not take place in his house but in an army camp, where he was beaten. He said they came to his house the next day and then left; two weeks later he was taken to the camp. I reminded him that he had confirmed twice that his being taken to the camp was the first contact with the CID over the matter. He said he had been talking about being interrogated and beaten; the first incident was just an enquiry.
·I asked why there was no mention in his written statement of the incident, two weeks after [Mr A’s] death, in which he was taken to the army camp, interrogated and beaten. He said he did mention that he had been questioned and beaten but not when this was. I noted that the first mention in his written statement of his having been beaten showed this as having happened in June 2012. He said this was what had made him leave the country.
·He agreed that he was claiming to have been taken to the camp once more in January 2007 where he was again questioned and beaten. I noted that this was quite different from the claim in his statement that in January 2007 the CID returned to his house to ask him about some bombs then left, threatening that a white van would pick him up and he would not return alive. He said they questioned him at home and then took him to the camp. Asked why he would have claimed in the statement that they left after questioning him in his house he said they did so but returned the next day and took him to the camp. Asked why he would not have mentioned this in the statement he said he had not elaborated on the matter. Asked why he would fail to mention the much more serious matter of being taken to the camp and beaten he said he had now done so. He remembered having said it earlier.
·Regarding his claim to have been taken to the army camp for questioning on about ten occasions I noted that in his written statement he mentioned only two such incidents. He said he had mentioned these incidents but did not specifically mention that he was taken to the camp. Asked what would happen after the CID or army had ceased questioning and beating him on these occasions he said they would tell him he could go but that he could not leave the area and could be called in for questioning again. Asked if he was ever charged with an offence he said they had all his information in their records and they could take him whenever there was an incident. He was never detained or placed in a rehabilitation camp.
·I noted the information before the Tribunal indicates that during and immediately after the civil war anyone genuinely suspected of involvement with the LTTE was dealt with very severely. A person suspected of carrying weapons for the LTTE or planting bombs which killed soldiers would not have been released but instead detained over a lengthy period, subjected to severe mistreatment and placed in a rehabilitation camp. The fact that this had not happened to him suggested he was not believed to have been involved with the LTTE. He said the fact was that he was genuinely not involved; although they were suspicious they had no evidence to charge or detain him. I suggested that, at least during the civil war, the authorities were not overly concerned about the need to obtain proof in these matters, and simple suspicion was sufficient for them to act. He said they were suspicious – otherwise why would they have called him in for questioning so many times?
·I put to him that I had some concerns about the credibility of his claims to have been interrogated and harmed by the CID and the army, given the inconsistencies between his evidence at the hearing and the claims in his written statement. He said he could not prove what had happened to him, adding that these things also happened to everyone else.
·Asked if such things also happened to other members of his family he said they had not, but his close relatives lived in LTTE-controlled areas, adding to the suspicions the authorities had about him. Asked what had happened to these relatives he said some have returned to Jaffna. Most of his ‘cousin brothers’ were put in rehabilitation camps. Asked why he had never mentioned this matter before he said he had mentioned it in his protection visa interview. Asked why it was not included in his statement he reiterated that he mentioned in the interview that his relatives were in India. To the observation that he had not mentioned having relatives who were placed in rehabilitation camps he said this was because he was not asked about it. His relatives were forced to support the LTTE. Noting that this was a very relevant issue I asked why he would not have mentioned it in his entry interview, his written statement or his protection visa interview. He said he had mentioned that he was in trouble because his relatives were living in the [Town 1] but did not mention they were in rehabilitation.
·Asked if his father had ever been suspected of being a member or supporter of the LTTE he said he had not. Asked why he had not come under suspicion as a result of relatives being placed in rehabilitation camps he said his father did not have any involvement with anyone. In his own case his close friendship with [Mr A] led the authorities to suspect him, a suspicion which was reinforced his relatives’ circumstances.
·Regarding his claim to fear harm in Sri Lanka as a Tamil I noted there is information before the Tribunal, including recent reporting by DFAT and the UNHCR, which indicates that now, six years after the end of the civil war, Sri Lanka citizens are no longer at risk of serious or significant harm simply because they are Tamils, whether or not they happen to be young Tamil males from the north of the country. He said such reports are compiled in Colombo in association with the authorities by people who never go to the north or come into contact with those living there. The reality is that the number of soldiers in the north is still increasing and the government has announced that it will not reduce or withdraw the army. If conditions have changed so that there is no problem for Tamils, why would there be a need to increase the size of the military? He added there were incidents of people who had returned from Australia being made to disappear and this information did not come out. Asked how he knew of this if the information had not come out he said there are news reports of people having been abducted and disappeared, but this information is not included in the DFAT or UNHCR reporting.
·Regarding his claim that he would be harmed on return to Sri Lanka because he had sought protection in Australia I noted that the information before the Tribunal about the treatment of those returning to Sri Lanka indicates there are standard procedures under which returnees are questioned on arrival by a range of government agencies and their identities are checked with the authorities in their home areas. These procedures are applied in the same way, regardless of the returnee’s ethnicity. Unless the checks reveal criminal activity or a connection with the LTTE they are then allowed to leave the airport and return to their homes. There may be follow-up visits by police or other authorities and returnees may be questioned but the information does not indicate that returnees experience serious or significant harm, either at the airport on arrival or after they have returned to their home areas, because they applied for protection overseas. He said he had been instructed not to leave the country but had disobeyed the order. This would create a problem for him on return. His previous problems would make things worse for him than they were when he left. Asked if he had ever received a document instructing him not to leave the country and to remain at home he said it was only a verbal warning and was not put in writing.
·I noted the Tribunal has information indicating that those who return to Sri Lanka after having breached the provisions of the Immigrants and Emigrants Act by leaving through a non-official port are likely to be arrested and taken to Negombo magistrates court for a bail hearing. Bail is granted and if convicted at a later magistrates court hearing, such persons are fined sums ranging from Rs 5,000 to 50,000. Those who arrive on a weekend or a public holiday are likely to be held on remand in Negombo prison for few days before they can be taken to the court for a bail hearing. Although conditions in the prison are reportedly cramped and dirty, the Tribunal might conclude that simply being held there for a few days awaiting bail or subsequently being fined would not amount to serious or significant harm such as to engage Australia’s protection obligations. The information also indicates the Act is a law of general application, designed to regulate the movement of people into and out of the country, and is implemented in a non-discriminatory way, regardless of ethnicity, religion or other circumstances. I put to him the Tribunal might conclude that if he were penalized under such a law this would not trigger Australia’s protection obligations to him. He repeated that he had disobeyed an instruction not to leave and had left illegally. On return he might have to face the consequences for his disobedience.
·Asked if there was anything he wished to add he said he did not believe he would have a future if he returned to Sri Lanka. He would not be able to complete his studies and would be put in jail. He would lose everything he had gained. He could not go back.

On 7 May 2015 the Tribunal received a further submission from the advisor citing additional country information and addressing a number of matters raised at the hearing. He submits, in summary:
·The discrepancies the Tribunal identified between the Applicant’s oral evidence and his written statement were of a minor nature. Further, the Applicant has been consistent as to his claim that he was questioned by the CID and has provided a candid account of the reasons he fled, without embellishing his claims of the treatment he received at the hands of the CID. Part of the questioning at the hearing was specific and explored matters which had not been canvassed in detail at previous interviews, allowing him to provide evidence in greater detail. In his Immigration interview he was instructed to provide short answers. Further, there are a number of circumstances the Tribunal should bear in mind in assessing his credibility, including his lack of familiarity with the immigration process and formal interviews; the fact that he has lived his life in fear of the authorities and the difficulty this presents in speaking about traumatic parts of his life; and the need for him to articulate his claims through an interpreter.
·The Tribunal should place weight on the fact that the Applicant was questioned numerous times over a long period by the CID. Although he was not held in a rehabilitation camp members of his extended family were so held, on the basis of their LTTE membership. Further, while his family were from Jaffna their origins were in the [Town 1], providing another reason why he would be continually interrogated. These matters, cumulatively, suggest he has a profile which would expose him to serious or significant harm on return. He would be arrested and his previous encounters with the CID would come to light, casting suspicion on him.
·Information indicates that those detained by the Sri Lanka secret services face a real risk of being ill-treated and harmed. The Applicant has certain characteristics which would make him vulnerable to harm when detained at the airport on arrival. These are the same characteristics identified by the Tribunal in another case from Sri Lanka (RRT [number]) namely youth, innocence, impressionability, immaturity, lack of worldly experience together with his appearance and slight physical stature.
·The Tribunal should not place weight on DFAT reporting indicating that the situation for Tamils in Sri Lanka has improved or that they are no longer being subjected to persecutory harm. Recent reporting from the media and sources such as Human Rights Watch, Amnesty International, the Swiss Refugee Council and the UN Human Rights Council indicates that serious abuses of human rights continue to occur, with a lack of accountability or investigation. The country information also confirms that the authorities have settled large numbers of Sinhalese to Tamil areas to dilute the Tamil population. There remains a significant army presence in Tamil areas, given the fear by the authorities that the LTTE will return.
FINDINGS AND REASONS
The Applicant claims to fear serious harm in Sri Lanka on the Convention grounds of his Tamil race, his real or imputed political opinion in favour of the LTTE and against the government, and his membership of the particular social groups consisting of ‘failed asylum seekers’ and ‘young Tamil males originating from the north of Sri Lanka.’ He also claims to fear significant harm in terms of s.36(2)(aa) of the Act.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at451.
On the basis of the photocopied documents submitted by the Applicant with his protection visa application, including his Sri Lankan driving licence, I accept that he is a citizen of Sri Lanka and that his identity is as he claims it to be. I also accept that he is ethnically Tamil and his religion is Protestant Christian.
Imputed political opinion
The Applicant claims the Sri Lanka CID and army suspected him of a connection with the LTTE and involvement in bombings and weapon smuggling. He claims this arose because he had a friend, [Mr A], who was killed by the army in 2006 after a bomb explosion in which two soldiers were killed. He also claims he came under suspicion because of his family’s origins in the [Town 1] area controlled by the LTTE during the civil war. He added at the hearing that a number of his relatives had been placed in rehabilitation camps at the end of the civil war for having supported the LTTE.
I note that the Applicant’s claims concerning the shooting of his friend [Mr A] in 2006 were first raised by him in his entry interview [in] October 2012, some two months after he arrived in Australia. He has given a generally consistent account of this incident since then and his claim is supported by a letter from a church minister, although there is some tension between the Applicant’s statement that the army was responsible for the shooting and the minister’s reference to it having been carried out by an unidentified group. On this basis I accept that the Applicant did have a friend named [Mr A] who was shot and killed in 2006. I also accept that this would have been a disturbing incident for him, and that it may have made him generally fearful that he too would be harmed.
The Applicant claims further that the authorities turned their attention to him because [Mr A] had been a close friend, and that they harassed and harmed him in a number of incidents over the next six years up to the time that he left Sri Lanka for Australia in June 2012. I have a number of doubts as to the credibility of these claims, for the following reasons:
First, as put to him at the hearing I have some doubts about the strength of his connection with [Mr A]. His evidence was to the effect that he had been in complete ignorance of his friend’s involvement with the LTTE until he was informed of it by the CID who said he was responsible for the bombing and that they had found weapons in his vehicle. When he was asked why he would not have known about this if, in fact, their friendship had been a close one his response was to retreat some way from his claims about the strength of the friendship, suggesting that although [Mr A] was from his own village he was five years older and they knew each other only through playing cricket – either at weekends or during weekday afternoons after school.
Second, his evidence at the hearing about the incidents in which the CID or army harassed him following [Mr A’s] death was notably inconsistent with the account he gave of this in his written statement.
·According to the statement the CID came to his house to question him the day after [Mr A] was shot (i.e. at some point in August 2006) They did so again in January 2007 appearing at the house with some bombs and asking if he had any knowledge of them. They then left, threatening (for reasons which are unclear) that he would be picked up by a white van and made to disappear. In July 2007 he and five friends were told to report to [an] army camp where he was taken to a room full of armed men and asked about bombs. After denying any knowledge he was released. He was interrogated in his house about fifteen times until finally, when a bomb was found in his village in June 2012, he was taken to [an] army camp, interrogated and beaten.
·By contrast, his evidence at the hearing was that his first contact with the CID occurred two weeks after [Mr A’s] death when he was taken from his home to the camp, questioned and beaten. In January 2007 there was a bomb blast in [a location] and he and four or five of his friends were asked what they knew about the incident. He was again beaten. Whenever there was an incident he would be taken into the army camp for questioning. This happened about ten times and on about five occasions they questioned him in his house. The last incident occurred in 2012 when he was interrogated and beaten in the camp after a bomb was found in a well.
·I note as well that his claim of having been taken to an army camp on multiple occasions is in conflict with the information he gave in his protection visa interview to the effect that this happened just once.
When the Applicant was asked about these discrepancies he suggested that in referring to his first contact with the CID at the hearing he was focusing on being interrogated and beaten. The CID had, in fact, come to his house straight after [Mr A’s] death but this was just for an enquiry. They also came to the house two weeks later and took him to the camp. Having considered this response, however, I am not satisfied that it adequately explains the clear differences between the two accounts. It also does not explain why he would have failed to mention in his statement so important a matter as having been interrogated and beaten in an army camp in August or September 2006 or, for that matter, why his statement would not mention more than one of the other ten or so similar incidents which he now claims occurred over the next six years. I accept that [Mr A’s] death occurred some years in the past but the incidents the Applicant describes could reasonably be expected to have been dramatic and memorable ones for him, had they actually occurred, and they are obviously directly relevant for his claim to be at risk of harm from the CID or the army in Sri Lanka. I am not satisfied that he has advanced any plausible explanation for his inconsistent accounts about them and, with respect, I am unable to agree with the advisor that these are only minor issues. Even giving due weight to the other considerations urged by the advisor in the submission of 7 May 2015 about the difficulties faced by the Applicant in articulating his experiences, I find that the inconsistencies cast strong doubt over the credibility of his claim to have suffered harm at the hands of the CID or the army.
Third, as put to the Applicant at the hearing I find it generally implausible that if the CID or the army had been at all suspicious of him over his association with [Mr A] – a person they had killed because they believed him to have been a member or strong supporter of the LTTE who was responsible for planting a bomb which caused the death of two soldiers – they would simply question him in his house, or question and beat him in an army camp, only to release him each time. These incidents are said to have occurred during the last years of the civil war and its aftermath, a period when, according to the information before the Tribunal, those suspected of involvement in LTTE terrorist activities were highly likely to be subjected to long-term detention, severe mistreatment and placement in a rehabilitation camp. I am not satisfied that the treatment described by the Applicant is at all consistent with the available country information, even making allowance for his claim to have been beaten a number of times in an army camp, and I find this casts further strong doubt on his claims.
Taking these considerations together, I am unable to be satisfied as to the credibility of the Applicant’s claim that he was harassed by the CID or the army in the way he has described over a six-year period from 2006 to his departure for Australia in 2012. Specifically, I am not satisfied that he was questioned in his home, that he was taken to an army camp on a number of occasions where he was questioned and beaten or that he was threatened with death. Nor am I satisfied that he was instructed not to leave Sri Lanka or that, following his departure, the CID came to his house to ask his whereabouts and threaten that they would harm him when he returned. As I am not satisfied that these things happened to him I do not accept that he was in such circumstances imputed with a political opinion favourable to the LTTE and against the government.
I have also considered the Applicant’s claim that the authorities were suspicious of him because his family’s origins were in [Town 1], an area of Sri Lanka under the control of the LTTE for much of the civil war. I note that this claim apparently relates to a generation before his parents, given that they are both shown in his protection visa application as having been born in Jaffna rather than in the [Town 1]. If such suspicions had existed, however, it is difficult to understand why they were not manifested in any overt action against him; as noted, I am not satisfied that he was ever questioned or harassed by the CID or the army, either before 2006 or afterwards, and there is nothing in the information before the Tribunal to indicate that any other government agency exhibited an adverse interest in him. I believe it is also relevant that he does not claim any members of his immediate family have come under suspicion for such a reason and I note that his parents and [a few] of his siblings continue to live in the family home. In this context as well I have considered the claim he raised at the hearing that a considerable number of his relatives from [Town 1] (his ‘cousin brothers’) were placed in rehabilitation camps at the end of the war because they had been forced to support the LTTE. As put to him, this was the first mention he had made of a development which, if true, would clearly be of direct relevance for his claim that the authorities suspected him of involvement with the LTTE. He was able to offer no explanation as to why he would not have mentioned this circumstance previously.
Taking these matters together I am not satisfied as to the truth of the Applicant’s claims that the authorities were suspicious of him because his family’s earlier geographic origins happened to be in [Town 1]. I do not accept that his relatives were placed in rehabilitation camps at the end of the civil war. Nor do I accept he was perceived as a member or supporter of the LTTE as a result of other members of his immediate or extended family coming under such suspicion.
I note that in his protection visa interview the Applicant also suggested the authorities suspected him of smuggling goods into Sri Lanka because he had worked as a fisherman. Once more, however, I do not accept that he was subjected to questioning or harm by the CID, the army or any other government agency which might reflect the existence of such suspicions. Further, he has not advanced any explanation as to why he would have been singled out in this way among the many other Tamil fishermen working in his area. I am not satisfied there is anything in the information before the Tribunal to indicate that he did come under suspicion for this reason.
I have also considered whether, independently of the Applicant’s claims about his experiences in Sri Lanka, his Tamil ethnicity and his status as a failed asylum seeker might have cast suspicion on him as holding a pro-LTTE political opinion.
The information before the Tribunal indicates membership of the LTTE and support for it during the civil war was very largely confined to Sri Lanka’s Tamil population. This does not lead to a conclusion that all Tamils were members of the organization or even that a majority supported it during that period however, and I note that for much of its early life the LTTE’s activities centred on a struggle for primacy among other organizations pressing for Tamil rights, an aim it pursued through a campaign of assassinating leaders and activists of more moderate Tamil parties. While I accept that during the war years the authorities may have held a general suspicion that Tamils, particularly those in the north and east of the country, were generally sympathetic to the LTTE and its aims I am not satisfied the available country information, including recent assessments by DFAT[3] and UNHCR[4], indicates such a view is now held about members of the Tamil minority six years after the end of the war. I am not satisfied that, simply because he is ethnically Tamil and is from the Northern Province, the Applicant would come under suspicion of holding a pro-LTTE or anti-government political opinion on return to Sri Lanka, or that he would face serious or significant harm as a result.
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Report: Sri Lanka,’ 16 February 2015; Department of Foreign Affairs and Trade, ‘DFAT Thematic Report, ‘People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.
[4] UNHCR’s ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (21 December 2012)
I accept that if the Applicant were to be returned to Sri Lanka it would most likely be evident to the authorities that he had unsuccessfully sought protection in Australia. However, as further discussed below, having considered the material on the treatment of returnees cited in the delegate’s decision record and the advisors’ submissions, together with other material including reporting by DFAT[5] I am not satisfied the information before the Tribunal supports a conclusion that returning Tamils are in fact suspected of having links with, or supporting, the LTTE simply because they have sought asylum in Australia or because they have been living here for an extended period. I am not satisfied that the Applicant would be imputed with a pro-LTTE or anti-government political opinion for these reasons.
[5] In particular: CX234989 of 14 October 2009; CX234202 of 29 September 2009; CX 249694, CX297471 of 19 October 2012; CX304258 of 27 February 2013; DFAT report 1479 of 4 March 2013; DFAT Country Report, Sri Lanka, 3 October 2014; and DFAT Country Report, Sri Lanka, 16 February 2015.
Having considered all the information before the Tribunal I am not satisfied that the Applicant was interrogated and beaten by CID or army personnel, as he claims, or that he left Sri Lanka in fear of harm at the hands of the authorities. I am not satisfied that he was suspected by the authorities of supporting or being a member of the LTTE, or that they had any adverse interest in him. Nor am I satisfied that members of the CID came to his house after he left for Australia searching for him and threatening to harm him if he returned. I am not satisfied that there is anything about his family, his friendship with a person named [Mr A] his Tamil ethnicity or his having sought protection in Australia which would lead to him being imputed with a pro-LTTE political opinion and constitute a future source of harm for him.
Tamil race
I have considered the information before the Tribunal relevant to the treatment of Sri Lanka’s Tamil minority. This includes the material cited in the delegate’s decision record and the submissions together with other relevant assessments, in particular, current DFAT reporting; the UNHCR ‘Eligibility Guidelines’ reports by the United States State Department, the United Kingdom Border Agency, the Immigration and Refugee Board of Canada, Amnesty International and Human Rights Watch; and the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

I accept there is sufficient in the available information to indicate that, at least up until the end of the civil war in May 2009, Sri Lankan citizens who were Tamils were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity. The information indicates that this risk was not constant throughout the country, with young males and those living in the LTTE-dominated Northern and Eastern Provinces being more likely to be targeted, but that overall it was sufficient for the purposes of assessing protection claims to find that an applicant was in need of protection simply on the grounds that he or she was ethnically Tamil.
However, it has now been more than six years since the LTTE was militarily defeated and the weight of information indicates that over this period the security situation has stabilized and the risks posed to Sri Lankan citizens on the basis only of their Tamil ethnicity are substantially reduced. This view is adopted in the 2010 version of the UNHCR ‘Eligibility Guidelines’ report which, in contrast to the 2009 version, no longer refers to a presumption of eligibility for protection for Sri Lankans simply on the grounds that they are Tamils originating from the north of the country. These conclusions are endorsed in the 2012 version of the Guidelines even though the document does caution that a merits-based assessment based on individual circumstances is still necessary, that Tamil ethnicity can increase the vulnerability of persons within other ‘risk profiles’ whose protection claims warrant particularly close attention and that the ‘risk profiles’ should not be seen as exhaustive. The report lists these risk profiles as:
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.
….
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.
This assessment is supported by DFAT in its most recent reporting (DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam, and DFAT Country Report – Sri Lanka) and is also consistent with the findings of the United Kingdom Upper Chamber and the Home Office Country Information and Guidance report ‘Sri Lanka: Tamil Separatism’ of 28 August 2014.
Taking this information together, I am not satisfied it indicates that those Sri Lankans who are ethnically Tamil now face a real chance of serious harm simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the north or east of the country put them at greater risk of such harm. I am not satisfied the information supports a conclusion that there is a real chance the Applicant would suffer serious harm because of his ethnicity. Nor am I satisfied that the fact he is a young male from the Northern Province would operate to exacerbate the fact of his Tamil ethnicity so as to create such a real chance.
In this context I have also considered the Applicant’s claim to have experienced discriminatory harm, related to his Tamil ethnicity, over the course of three months in 2011 when he was employed in a [company] in Colombo in 2011. He states he was paid less than Sinhalese workers and in his protection visa interview said he was given work as a cleaner rather than as a printer.
On the basis of the available country information I accept there has been a history of discrimination against Sri Lanka’s Tamil minority, particularly in access to education and public sector employment, since the country gained its independence in 1948, in part as a reaction to a perceived favouritism toward Tamils by the British colonial administration. This contributed to a sense of grievance which played a part in generating Tamil demands for a homeland in the North and East, the rise of Tamil militancy and the LTTE and the long civil war.[6] I also note, however, that DFAT’s most recent country information report indicates successive Sri Lankan governments have made efforts to address these ethnic and linguistic tensions through constitutional, legal and policy changes. The country’s official laws and policies do not discriminate against Tamils on the basis of their race, including in relation to education, public sector employment or access to housing, and the government does not sanction discrimination in their implementation. DFAT notes that Tamils can sometimes have difficulty communicating with the police, military and other Government authorities but assesses that this does not reflect official discrimination but reflects a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of previous discriminatory language policies.[7]
[6] DFAT, Country Information Report – Sri Lanka, 3 October 2014
[7] Ibid.
While DFAT reporting does indicate that Tamils continue to face some degree of societal discrimination in Sri Lanka I am not satisfied this can reasonably be seen as rising to the level of serious or significant harm. Nor am I satisfied, on the information available to the Tribunal, that Tamils are subjected to serious or significant harm through being denied political, economic, religious or other rights on a discriminatory basis because of their ethnicity.
Against this background I note that in his protection visa application the Applicant describes his position in the company as ‘helper.’ Given that the period of his employment was quite brief and that he apparently had no relevant experience in the [industry] when he joined the company it seems generally unsurprising that his salary would have been low – quite possibly lower than that of Sinhalese colleagues who had been employed for longer - and that, at least in the beginning, he may have been assigned to duties other than [deleted]. I accept that he may also have been subjected to some name-calling based on his ethnicity, and that this would have been unpleasant and upsetting for him. However, even taking these matters at their highest I am not satisfied they could reasonably be described as rising to the level of either serious or significant harm in his particular circumstances. I believe it is also relevant that he was able to obtain other employment in Sri Lanka, as a [occupation] and a fisherman and that he does not complain of having suffered harm in these positions because he is a Tamil.
Having considered these aspects of the Applicant’s claims I am not satisfied he would be at risk of serious or significant harm on return to Sri Lanka because of his Tamil ethnicity and geographic origins, whether or not this is alternatively advanced as a claim to fear harm on the basis of his membership of the particular social group consisting of ‘young Tamil males originating from the north of Sri Lanka.’
Particular social group - failed asylum seeker
I have considered the claim that the Applicant would be at risk of harm on return because he has sought protection in Australia and, if he returned to Sri Lanka, would do so as a member of the particular social group consisting of ‘failed asylum seekers.’ I am prepared to accept that such an entity can be said to exist in Sri Lanka as a particular social group, in the sense that it is sufficiently identifiable by characteristics or attributes common to all its members, other than a shared fear of persecution, which distinguish it from society at large. I also accept that the Applicant could be said to be a member of this entity, a fact which would most likely be apparent to the authorities by the circumstances of his arrival as an involuntary returnee.
There is considerable information available to the Tribunal on the treatment of those who return to Sri Lanka, including those who do so having been denied protection abroad. This includes the material cited in the delegate’s decision record, the advisor’s submissions, the United Kingdom Upper Chamber decision in GJ and Others and relevant DFAT reporting. Having considered this information I accept that in relatively recent times some of those who have returned to Sri Lanka from the United Kingdom and elsewhere in Europe, in particular those who are ethnically Tamil, claim to have experienced torture and other abuses at the hands of the authorities. I note, however, that these cases have overwhelmingly involved persons who have either had an actual connection with the LTTE or are strongly suspected of such linkages, or who are criminal suspects. A majority of the complaints are from persons who returned to Sri Lanka voluntarily. The claimed mistreatment which these cases involve is thus not directly relevant to the risks for persons who are involuntarily returned from Australia and whom the authorities have no particular reason for suspecting of criminal or LTTE links. I am not satisfied these claimed incidents demonstrate that simply applying for asylum in Australia exposes returnees to harm.
I also note that in considering this issue, in the context of appeals against the planned forced return of a group of a group of Tamils from Britain, the United Kingdom Upper Chamber concluded that the Sri Lankan authorities are aware that many Sri Lankan Tamils travel abroad as economic migrants and that everyone who had lived in LTTE-controlled areas during the war had some level of involvement with the LTTE. The Upper Chamber considered that the focus of the Sri Lankan government is now on identifying Tamil activists in the diaspora working for Tamil separatism and the destabilisation of the unitary Sri Lanka state. It aims to prevent the resurgence of the LTTE, or any similar organization, and the revival of the civil war.
Against this background the Upper Chamber identified the categories of persons currently at real risk of persecution or serious harm on return to Sri Lanka as:
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; and (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. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
Recent DFAT reporting indicates it is only those returnees who are suspected of LTTE involvement or criminal activity, including people smuggling, who are at risk of harm, and that there has been no substantiation of claims that returnees from Australia without such links have been targeted.[8] Regarding procedures for those returned to Sri Lanka, DFAT’s 2015 ‘Country Report: Sri Lanka’, states:
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.
[8] DFAT Country Report Sri Lanka, 16 February 2015.
On the subject of the experiences of returnees from Australia the DFAT report also notes that:
Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.
I note that in his submission of 7 May 2015 the advisor makes a number of reflections on aspects of DFAT’s assessment of conditions for Tamils in Sri Lanka and suggests, in summary, that greater importance should be placed other reporting which points to ongoing denial of human rights and persecution of the Tamil minority. Having considered the material, however, I do not accept that the DFAT reporting, based as it is in recent observations and discussions with a range of contacts in Sri Lanka, should not be given weight. On the basis of that reporting and the other information before the Tribunal I am satisfied that standardised procedures apply to all returnees on arrival, regardless of their ethnicity, under which they are routinely interviewed by the Immigration and Emigration Department, the State Intelligence Service (SIS) and the airport Criminal Investigation Department (CID) The processes of questioning and police and security clearance checking, including with local authorities in the Applicant’s home area, may take some hours. If the checking reveals outstanding arrest warrants for prior criminal offences, or if there are alerts in immigration watch-lists, returnees may be subject to further questioning and, possibly, arrest.
I accept the Applicant would be subjected to these processes on return to Sri Lanka. I am not satisfied this would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason. As I am not satisfied that he has ever been under genuine suspicion of having links with the LTTE, or that there is any reason to believe he would now fall under such suspicion or would be suspected of having committed any crime, I am not satisfied he would be arrested, detained or subjected to harm for this reason. Nor am I satisfied that he falls within any other identified category of persons who might be at risk of persecutory harm on return, either at the airport or later. I am not satisfied that the fact of his being questioned at the airport in this way, even for an extended period, could in itself reasonably be characterized as harm, or that he would be subjected to any other form of mistreatment there. While the information suggests he might be visited by the CID or police following his return to his home area in Jaffna, and that he might be placed under some degree of monitoring, I am not satisfied that such visiting or monitoring could reasonably be described as harm in his particular circumstances. Nor am I satisfied that, having returned to Jaffna, he would be subjected to any more serious forms of official attention.
In reaching these conclusions I have taken into account a 2013 Sydney Morning Herald report by Ben Doherty[9] regarding returnees from Australia who were said to been harassed following their release from the airport and their return to their homes in Batticaloa. The six persons interviewed claimed they were campaign workers for the opposition Tamil National Alliance (TNA) and that they and other TNA activists were threatened by paramilitary groups allied to the government after the governing United People’s Freedom Alliance lost control of the Eastern Provincial Council. I also note there has been considerable media reporting on the case of three Sinhalese men reported to have been abused by the CID after return from Australia.[10] These include two brothers, Sumith and Indika Mendis who arrived in Christmas Island in 2009 as crew members of a people smuggling boat and were later returned to Sri Lanka. They claimed they were detained and tortured after their return. They were arrested again in August 2010, together with Lasantha Wijeratne, on charges of people smuggling in connection with a further journey to Australia and claimed they had again been subjected to severe torture while in detention. Having considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind, and has never been involved in people smuggling ventures.
[9]‘I don’t sleep at night for fear I will disappear,’ Ben Doherty, Sydney Morning Herald, 21 March 2013, See, for example, ‘Torture, rape and ill-treatment suffered by Sri Lankans who return home;’ Human Rights Law Centre, ‘Re-examine claimed safety of refugee returnees, AI appeals to Australia,’ TamilNet, 3 September 2010, ‘Failed asylum seekers allegedly beaten’ Lateline, ABC, 21 April 2011.

Taking this information together I am not satisfied the Applicant would face a real chance of either serious or significant harm at the hands of the authorities on return to Sri Lanka, on arrival at the airport or later after his return to his home in Jaffna, because he had sought asylum in Australia.
Unlawful departure
I have further considered whether the fact of the Applicant’s unlawful departure from Sri Lanka would put him at risk of serious harm, either in itself or because it would increase a risk that he might face harm for having sought asylum in Australia.
The information before the Tribunal indicates that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a magistrates court for a bail hearing. Bail is routinely given on the accused’s own recognizance although a family member may also be required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until the next opportunity for a bail hearing arises. Conditions in Negombo prison have been described in media reports[11] as overcrowded and unsanitary, but there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Act, including those returned from Australia, have been subjected to torture or other forms of deliberate abuse or mistreatment.
[11] ‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, >
Although the Act provides for penalties of both imprisonment and fines on conviction for illegal departure, the information before the Tribunal indicates that magistrates and judges have discretion in imposing penalties, and in practice those who have simply breached the provisions of the Act by departing through a point other than an official port of entry or exit are subjected to no more than a fine. DFAT reports it was informed in March 2014 by the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was only a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but that fines have been issued to act as a deterrent against joining boat ventures in the future. According to DFAT, fines eventually imposed on returnees by the courts for illegal departure range from Rs 5,000 to 50,000 (about AUD 45 to 450 at current exchange rates)[12] DFAT reported that it had not received, and was unaware of, allegations of mistreatment of returnees at the airport or in remand awaiting a bail hearing in connection with charges under the Act.
[12] DFAT 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October; DFAT 2012, SRI LANKA: CIS Request Sri Lanka: Questions arising from recent applications, Country Information Report No.12/67, 29 November; CISNET CX299951; DFAT 2013, MRT/RRT Information Request: LKA41452; DFAT Report 1478, 28 February; DFAT Country Report: Sri Lanka, 16 February 2015.
I accept that DFAT does not monitor individual court processes for returnees from Australia or follow up on what happens to persons charged under the legislation. However given the extensive media interest in this issue and the fact that well over one thousand Sri Lanka citizens have been returned from Australia over the last four or five years I believe it is significant that no evidence has emerged of any other penalties or forms of punishment or mistreatment having been inflicted on them in relation to this offence.
As put to the Applicant at the hearing, the information before the Tribunal indicates that the relevant provisions of the Act are applied consistently and do not discriminate among Sri Lankans because of their race, their religion or on any other ground. On the information before the Tribunal I am satisfied that the Act is a law of general application, enforced in a non-discriminatory way.
On the basis of the available information concerning the enforcement of the Act I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than questioning at the airport on arrival, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment. I find that this treatment, including such a period of detention on remand, would reflect no more than the non-discriminatory enforcement of a law of general application. I note the advisor’s contention that the Applicant’s individual circumstances match those of an applicant in another case identified by the Tribunal in a 2013 decision setting aside the delegate’s decision, and that this would similarly put him at an elevated risk of harm while in prison awaiting a bail hearing. The Tribunal is, of course, not bound to follow Tribunal decisions in other cases. Further, with respect, I am not satisfied there are in fact any clear similarities between the circumstances of the applicants in the two cases, other than that they are both unmarried Tamil males and I note that the applicant in the earlier case was from Udappu on the West coast who had only just turned [age]. I am not satisfied that the Applicant in the present case would suffer serious harm, including during a period in detention awaiting bail, because he breached Sri Lankan law in the manner of his leaving the country.
I note, finally, that in the hearing the Applicant raised the claim that he would be punished on return to Sri Lanka because he had disobeyed an instruction of the CID or the army that he was not to leave the country. However, as noted, I am not satisfied that he was ever given such an instruction and it follows I do not accept he would be at risk of harm for such a reason on return.
Summary - refugee claims
In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race, his actual or imputed political opinion or because he sought asylum in Australia after having left the country unlawfully, whether or not this is expressed in terms of harm inflicted because of his membership of a particular social group. While I accept that he might be questioned on arrival and placed on remand for a brief period while awaiting a bail hearing on a charge of unlawful departure I am not satisfied this would constitute serious harm, or that it would represent systematic and discriminatory conduct as required by s.91R(1)(c).
The Applicant does not claim to fear serious harm in Sri Lanka for any other Convention-related reason and no other reason is apparent on the face of the information before the Tribunal.
I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
Complementary protection
As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because of his imputed political opinion, his Tamil ethnicity or the fact that he sought asylum in Australia after leaving Sri Lanka unlawfully. Nor, having considered the information available to the Tribunal, am I satisfied he would be at risk of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act, for these reasons.
I accept that the Applicant would likely face arrest on charges relating to his unlawful departure from Sri Lanka, under a law of general application, and that he would be fined if found guilty. I am not satisfied that imposition of a fine, at the essentially moderate levels indicated by the information before the Tribunal, could reasonably be seen as rising to the level of significant harm in itself.[13] Nor am I satisfied that being fined such an amount would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.
[13] Sri Lanka’s ‘Household Income and Expenditure’ statistics for 2012-13 (the most recent available) indicate that mean per capita income in 2012/13 was Rs 11,819 per month and that the average monthly income, for income earners, was Rs 25,963. Even for the poorest 40% of the population, nationwide, average monthly household income was Rs 15,760. On this basis I do not consider the fines which are imposed for the offence of leaving the country unlawfully, even at the upper level of the range (Rs 50,000) could reasonably be described as disproportionate or that those convicted of such an offence would be unable to pay the fines off within a reasonable period.
Further, I am not satisfied, on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a relatively brief period awaiting a bail hearing, this treatment would in itself constitute significant harm. On the available information I am not satisfied that in his circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A).
I am also not satisfied, on the information before the Tribunal, that the Applicant would suffer any harsher form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.
The Applicant has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.
Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.
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
The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.
Andrew Mullin
Member