1319804 (Refugee)

[2015] AATA 3369

1319804 (Refugee) [2015] AATA 3369 (22 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1319804

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:22 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 22 September 2015 at 5:04pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.     The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] December 2013. He applied to this Tribunal for review of that decision on 24 December 2013. Attached to the review application was a copy of the delegate’s decision.

3.     The applicant appeared before the Tribunal on 15 September 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.     At times the applicant became agitated during the hearing. While the Tribunal notes the applicant provided vague details about seeing a doctor and a psychologist or psychiatrist, he did not offer the Tribunal any information about any diagnosis he had received or a clear reason for consulting health professionals. The applicant’s evidence was that he was currently on sleeping tablets and no other medication. The Tribunal found the applicant to be generally coherent and able to engage in the hearing in a meaningful way.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

9.      In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10.       The applicant claims to be a citizen of Sri Lanka who was born in [City 1], in Puttalam district, in the western province of Sri Lanka on [date]. The applicant claimed he lived at [an address] in [City 1]. He completed up to [a certain] standard at school and is fluent in Sinhalese and can speak Tamil. In the hearing he claimed that he worked [driving]. When asked if he engaged in this work before he left Sri Lanka he confirmed he was [driving] and was also going to the sea. The applicant stated in the hearing that he departed Sri Lanka illegally in May 2012. He stated that his wife, [child], mother, [and siblings] are residing in or close to [City 1].

11.       The applicant presented his claims in his protection visa application [in] December 2012 (folios 25 to 55 of the Department [File]), a Departmental interview he attended [in] September 2013  (folio 145 of [file]) and at his Tribunal hearing on 15 September 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

Summary of my claims

1.The following are my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin and I look forward discussing same in more details during my interview with the DIAC officer.

Introduction - Citizenship

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

3.I was mandated on the [date] of July 2011by the UNHCR in [country].

4.The DIAC wrongly recorded my date of birth as been the [date], it should be the [date].

5.I was born [City 1] on the [date] and I have [brothers and sisters] whom were also born in [City 1] as were my parents.

6.I was educated at [school] in [City 1] and completed year [grade]; I then began work as a Fisherman in [City 1] until 1994; I later became self employed in Negambo and was a [driver] until 2010. I resumed fishing and worked as a Fisherman until I departed Sri Lanka.

7.My father passed away in [1998] and my mother never remarried.

8.Neither I nor anyone in my family have ever been involved with any armed group.

9.My wife is also from [City 1] we knew and loved one another for 13 years before we got married in [1999] and we now have a [child] who was born in [year].

The country to which I fear returning

10.Sri Lanka

Why I left that country

11.The dates I am quoting are very approximate, I have great difficulties remembering and things are very "unclear in my head".

12.I had much grief under the UNP which was the ruling party at the time in Sri Lanka so when the elections came around, I decided to support Colonel Fonseka and although it was not acceptable in my area to openly support Fonseka, I hang posters and displayed leaflets in my shop.

13.The elections results were soon broadcasted sometime in 2010 and I became aware that Fonseka had lost and I was frightened so I went and hid away from my home but still in [City 1], I hid on a block of land I own whereupon there is a little building for storage. I returned home at night to see my family every so often and one day, my wife reported that people from the people's alliance at come to my home looking for me and also went to my shop, they broke in, took all the Fonseka paraphernalia I had, they broke windows and told people around that they will find me, catch me and kill me.

14.I stayed hiding on that field from 2010 until 2012; I then decided I couldn't continue living this way, I discussed it with my brother in law whom, sometime in February 2012 told me that there was a boat leaving to Australia in May so I decided to flee Sri Lanka and asked my brother in law to organise my departure, he did and I departed Sri Lanka in [May].

What I fear may happen to me in Sri Lanka.

15.I will be killed.

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

16.People from the People's Alliance party.

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

17.No, I had a bad experience with the authorities some years ago when the local council destroyed my shop under the pretext they were widening the roads, I approache the police, and to court all to no avail, the authorities don't care.

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

18.No, the people's alliance will find me wherever I am.

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

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

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

15.      The Tribunal accepts the applicant was born in [City 1] in the western province of Sri Lanka and that he lived in [City 1] prior to his departure from the country in mid-2012.

16.      The applicant claimed in the hearing, consistently with his earlier evidence to the Department, that he left Sri Lanka because his shop was damaged and he had political problems.

17.      In relation to the applicant’s claim regarding the destruction of his shop, the applicant stated in the hearing that the government authorities were responsible for this. He stated that the court case went on for 8 years and he had also gone to the Human Rights Commission. The Tribunal notes that applicant provided a copy of an untranslated document from the Human Rights Commission of Sri Lanka dated from 2011. As the document is untranslated the Tribunal places little weight on this as evidence that the applicant made any reports to the Human Rights Commission in Sri Lanka.

18.      The Tribunal has taken into consideration the translated copy of the decision of the Provincial High Court of the Western Province, which dismissed an appeal brought by the applicant’s brother. According to the decision the applicant’s brother had brought an appeal against the judgment of the District Judge of [City 1] dated [in] November 2003 in relation to action bought by the applicant’s brother. It was stated that the defendant was the Municipal Council of [City 1] and they had demolished the applicant’s brother’s building on the basis it was an illegal construction. The Tribunal finds that it is quite clear on the information included in the decision of the court that the applicant’s brother was responsible for erecting an unauthorised building on land belonging to the Municipal of [City 1] and as a result the council demolished the building. There is nothing to suggest that the applicant was in any way implicated in this matter or in the resultant court cases. In fact, the Tribunal notes according to the department’s decision, a copy of which was provided to the Tribunal, the applicant had given evidence that the shop which was damaged was his brother’s and not his; his mother had handed it over to his brother and it was located 25-30 meters from the shops owned by the applicant. The applicant confirmed in the hearing that it was his brother’s shop which was destroyed and it was his brother who had gone to the police and brought the court case and not him. 

19.      Given the applicant’s evidence in the hearing confirming that it was his brother’s shop that was destroyed more than twelve years ago and the fact that he stated it was honestly a problem for his brother and not for him, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of the destruction of his brother’s unauthorised shop which was erected and destroyed many years ago.

20.      The applicant also claimed to have experienced problems because of his support of Sarath Fonseka during the January 2010 elections. The applicant told the Tribunal that he had not worked for any political party prior to supporting Sarath Fonseka. When asked why he decided to support Sarath Fonseka, the applicant stated that he really liked him because he had been ill-treated. He explained that after Sarath Fonseka was put in remand he was of the mind that he had to help him. As the Tribunal noted during the hearing, Sarath Fonseka was not ill-treated or detained until after the election was held, therefore his reasoning for supporting him was not relevant. Despite the problematic nature of the applicant’s evidence regarding his motivation for supporting Sarath Fonseka, the Tribunal accepts that the applicant supported Sarath Fonseka during the January 2010 election by putting up posters. He confirmed that this was the only activity he engaged in during this election.

1. The applicant did not claim to have experienced any problems as a result of his support of Sarath Fonseka during the election. However, he claimed after the election some people came to his home looking for him. He stated that they made enquiries about “[nick-name]” and mentioned his name. He stated that this occurred a couple of days after the election. When asked where he was at the time of this visit, the applicant stated he was staying at another house in an area called [name]. He stated that the house was about 500 metres from where he lived. The applicant claimed he lived there until he came to Australia in mid-2012.

2. The applicant also claimed that some people broke his shop maybe one to three days after the election. When asked what damage was caused to his shop, the applicant stated that they had broken into his shop and looked for him. The Tribunal asked the applicant if any destruction was caused to his shop when they broke in. He stated that they had searched for him. The Tribunal asked the applicant who broke into his shop and he stated he did not know. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that the people who broke into his shop took all the Fonseka paraphernalia and had broken the windows and told people around that they would find him, catch him and kill him. However, in contrast, the Tribunal notes in the delegate’s decision, a copy of which was provided to the Tribunal, the applicant was reported as stating that he did not know what they did to his shop and he did not know who was pursuing him. The Tribunal asked the applicant if there were any other visits apart from the one to his home and shop. The applicant stated no. The applicant also confirmed that nothing happened between the incident at his shop and when he departed the country nearly two and a half years later in May 2012.

   23.      The Tribunal has carefully considered the applicant’s evidence and accepts that in the days following the election there may have been two occasions when enquiries were made about the applicant’s whereabouts from opposition party members. It accepts as plausible that people may have broken into his shop by breaking a window and they had taken the Sarath Fonseka posters and other election paraphernalia kept there.

   24.      However, the Tribunal does not accept that the applicant was in hiding for a period of nearly two and a half years from after the election in January 2010. As the Tribunal put to the applicant, according to his evidence in the hearing during that period of time he would go [fishing], he visited his family at his home and he was also working as a [driver] up until he came to Australia, as he confirmed at the beginning of the hearing. The Tribunal also notes according to the delegate’s decision, he stated that his friends and people who supported him knew he was there, just 500 meters from his house. Further, according to his statutory declaration he claimed he was “hiding” still in [City 1] on a block of land owned by him (on the same road that his house was located) and not a house owned by someone else. When this inconsistency was put to the applicant, he stated that it belongs to his wife’s side. The Tribunal does not accept that this is consistent with the applicant’s evidence in his statutory declaration. The Tribunal finds, taking into consideration the applicant’s evidence as discussed above,  in circumstances where he was living on his own land, people knew he was living there and he continued to work and visit his family, the applicant was not living in hiding during that period of nearly two and a half years.  

   25.      The Tribunal finds on the evidence before it that following these two particular incidents which occurred soon after the election, which the Tribunal does not accept constitutes serious harm within the meaning of the Convention, the applicant experienced no further problems as a result of his limited support of Sarath Fonseka. Taking this into consideration with the fact that he only engaged in limited activities in support of Sarath Fonseka during the 2010 election which was over five years ago, that he was not politically active prior to or after that election and his evidence which does not suggest any continuing interest in politics, the Tribunal finds that the applicant will not engage in any similar political activities upon his return to Sri Lanka. It therefore does not accept that he faces a real chance of serious harm for reason of his past support of Sarath Fonseka, from supporters or members of the PA, SLFP, any other opposition parties or anyone else, now or in the reasonably foreseeable future.  

   26.      In addition to the applicant’s claims regarding the destruction of his brother’s shop many years ago and the problems he experienced as a result of his limited support of Sarath Fonseka, the applicant raised new claims in the hearing suggesting that he had been beaten over a period of ten years in Sri Lanka. The Tribunal notes that there is nothing in the applicant’s statutory declaration or in the delegate’s decision suggesting that he was physically harmed in the past in Sri Lanka and given the seriousness of the applicant’s claims regarding this ongoing harm, the Tribunal finds it implausible that the applicant would fail to raise this prior to the hearing. Further, the Tribunal found the applicant to be evasive when questioned about these alleged beatings. He could not tell the Tribunal who was responsible for beating him, claiming that it was everyone. In response to the Tribunal’s questions as to the circumstances of the beatings he allegedly received, the applicant claimed he did not understand what happened and this needs to be asked from his family, his wife and his child. The applicant’s evidence suggested he was beaten every day over a period of ten years, yet he was unable to tell the Tribunal who was responsible for allegedly inflicting this harm on him or the nature of the harm that was perpetrated against him.  The Tribunal finds it implausible that if the applicant was subjected to such treatment over a protracted period of time, he would be unable to provide clear evidence regarding basic aspects of his alleged experiences, particularly given his ability to provide coherent and consistent evidence regarding other aspects of his claims, as discussed above.  The Tribunal therefore does not accept on the applicant’s extremely vague and limited evidence that he was beaten by anyone in the past, particularly over a period of ten years. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm from these unidentified people for an unspecified reason, now or in the reasonably foreseeable future.

   27.      The applicant also raised for the first time during the hearing, that there had been two visits from the [City 1] police to his home after his departure from the country. As the Tribunal put to the applicant in the hearing, there was nothing in his statutory declaration attached to his protection visa application or in the delegate’s decision, which the applicant provided a copy of, regarding any visits by the police to his home after his departure from the country. The Tribunal has difficulty accepting that if the police had made enquiries about the applicant, that he would fail to raise this at any stage prior to his review hearing. When asked why the police would go to his home looking for him, the applicant stated that he also does not know. However, he subsequently claimed that the police had come to his home twice within a few months of his departure in relation to a fine he had received whilst he was driving and had not paid. The Tribunal has serious doubts that the applicant would fail to mention any visits by the police if he was concerned about his safety. Based on the lateness in which the applicant raised this claim and the vague nature of his evidence in relation to the alleged reason for these visits, the Tribunal does not accept the applicant has been of any interest to the police as a result of any traffic offences or unpaid fines or any other reason.

1. The Tribunal notes that the applicant departed Sri Lanka illegally. The Tribunal asked the applicant if he had any concerns about the fact he left Sri Lanka illegally and if he believed this would result in him facing any harm. The applicant stated that he does not have any fear and he came consciously. The Tribunal finds on the applicant’s evidence he does not have a subjective fear of harm based on his illegal departure from the country.

2. In any event, as the Tribunal put to the applicant in the hearing, under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. This law is a national law which has a legitimate objective in upholding border integrity and applies to everyone who breaches it and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal 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.

3. The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the [City 1] 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 [City 1] 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.

4. As the Tribunal put to the applicant in the hearing, the information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes, as it did in the hearing, the applicant has his wife, mother [and siblings] who can stand as guarantor for him and there is nothing to suggest that they would not do this for him. The Tribunal therefore does not accept looking at his particular circumstances and the country information, he would face extended administrative detention on his return.

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

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

   34.      The Tribunal has had regard to the applicant’s evidence in the hearing that he wants to go back to Sri Lanka if he has permanent residency in Australia. As the Tribunal put to the applicant, his apparent willingness to return to Sri Lanka does not suggest that he has a subjective fear of harm for any reason. Based upon the applicant’s own evidence, the Tribunal finds that the applicant does not have a present or subjective fear of harm now or in the reasonably foreseeable future.

   35.      Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted because of his past political activities, his illegal departure from Sri Lanka or for any other Convention reason. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

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

7. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

8. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept the applicant’s claims regarding the destruction of his brother’s shop over 12 year ago caused him any problems in the past. Nor does it accept that as the shop was owned by the applicant’s brother, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk he will suffer significant harm in connection with the destruction of the shop, including the associated court cases.

9. In relation to the applicant’s claims regarding his support of Sarath Fonseka during the January 2010 election, while the Tribunal accepts that there were enquiries made about the applicant on two occasions in the days after the election was held, the Tribunal notes that the applicant experienced no further problems or difficulties over a period of nearly two and a half years prior to his departure from the country because of his limited activities. Further, the Tribunal finds on the applicant’s evidence in the hearing that he had not previously engaged in politics before that election or any time after that election. Therefore, in circumstances where the applicant engaged in very restricted activities over a short period of time over five years ago and has not demonstrated any further interest in politics, apart from voting, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk he will suffer significant harm in connection with his past support of Sarath Fonseka by putting up posters.

10. For the reasons discussed above, the Tribunal does not accept that the applicant was subjected to any beatings in the past in Sri Lanka. Nor does the Tribunal accept that the applicant’s family received any visits from [City 1] police after he departed the country in relation to the non-payment of any fines received whilst he was driving.

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

12. The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the [City 1] 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 [City 1] 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.

13. As the Tribunal put to the applicant in the hearing, the information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes, as it did in the hearing, the applicant has his wife, mother [and siblings] who can stand as guarantor for him and there is nothing to suggest that they would not do this for him. The Tribunal therefore does not accept looking at his particular circumstances and the country information, he would face extended administrative detention on his return. As discussed above, the independent information suggests that the applicant would be detained for a brief period that may well be less than a day or at most several days and although sources indicate that prison conditions in Sri Lanka are poor, the information does not indicate that there is real chance that a person with the applicant’s profile, a Sinhalese man from [City 1] who has no adverse profile, would suffer serious harm if held in remand for a short period of a few days.

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

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

16. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

17. 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).

18. 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

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

    Sydelle Muling
    Member