1400554 (Refugee)

1400554 (Refugee) [2016] AATA 4852 (26 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1400554
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Sydelle Muling
DATE:26 May 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 26 May 2016 at 1:07pm

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Imputed political opinion – Alleged association with the Liberation Tigers of Tamil Eelam – Family members detained by the Sri Lankan army and beaten – Army looking for the applicant – Fears persecution for seeking asylum in a western country – Discrepancies in the applicant’s evidence
LEGISLATION
Administrative Appeals Tribunal Act 1975 s190
Migration Act 1958, ss 36, 65, 91R,424AA, 499
Migration Regulations 1994, Schedule 2
CASES
GJ v. Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on [date] February 2013 and the delegate refused to grant the visa on [date] January 2014.
The applicant appeared before the Tribunal, differently constituted, on 14 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant‘s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
On 11 March 2016, the Tribunal wrote to the applicant inviting him to attend a further hearing on 22 April 2016. On 13 April 2016, the applicant wrote to the Tribunal requesting a postponement of the hearing to allow him time to obtain a new representative as his previous agent was no longer representing him. The applicant explained the efforts he had gone to in order to engage a new representative and requested time to collect the money required to pay for a new representative. The Tribunal considered the applicant’s request but decided to refuse to postpone the hearing on the basis that the applicant had the assistance of an adviser for the hearing with the previous Member and that the purpose of the second hearing was to discuss issues arising out of his evidence given during that hearing, as well as more recent country information. Further, the Tribunal took into consideration the fact that the previous hearing had been held nearly a year before and that there was nothing in the information provided by the applicant to indicate that he would be in a position to engage another representative in the near future. In light of these circumstances the Tribunal was of the view that the matter should not be delayed any further.
The applicant attended a further hearing on 22 April 2016 before the current member.
In finalising the decision, the current Tribunal has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.190(4) of the AAT Act 1975.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant claims to be a citizen of Sri Lanka who was born in [Village 1], [Area 1], in Jaffna district on [date]. According to his protection visa application he lived in [Village 1] from [his birth] to [October] 2007 and in Colombo from [October] 2007 to [October] 2009. He completed ten years education and is fluent in Tamil and can speak and read a little [of another language]. The applicant worked doing [general] labouring in various places including [Village 1], [Area 1] and Jaffna from [January] 2005 to [December] 2006. From [December] 2006 to [June] 2007 he worked [in a certain role]. The applicant departed Sri Lanka legally on [date] December 2008 (later amending the date of his departure to October 2008). The applicant’s mother and [sisters] are residing in Sri Lanka.
The applicant presented his claims in his protection visa application on [date] February 2013 (folios 30 to 62 of the Department File CLF[file number]), a Departmental interview he attended on [date] November 2013 (folio 120 of file CLF[file number]), submissions received by the Tribunal from the applicant’s adviser and at his Tribunal hearing on 14 May 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:
Entry Interview and summary of my claims:
1.An Entry Interview was conducted with me on [date] September 2012 with a DIAC [officer]. My entry interview is not an exhaustive statement as to why I am unable to return to Sri Lanka. The information given in this interview was not read back to me in Tamil.
2.The following is only a summary of my claims. It is not an exhaustive statement of the reason or reasons why I cannot return to Sri Lanka. I will provide further information in relation to my protection claims during my interview with the DIAC case officer.
Background:
3.        I was born in [Village 1], [Area 1], Jaffna District, SRI LANKA.
4.        I was born on [date]. I am [age] years of age.
5.I am a citizen of Sri Lanka. I do not have Citizenship or the right to reside in any other country.
6.        My ethnicity is Tamil.
7.        My Religion is Hindu.
8.        I have never been married and I have no children.
The country to which I fear returning:
9.        I fear returning to Sri Lanka.
Why I left Sri Lanka:
10.I fled Sri Lanka in October 2009 because of the persecution my family has had to encounter by the Sri Lankan Army due to our Tamil ethnicity and the imputed political opinion that we had an association with the LTTE.
11.I was born and grew up in Jaffna because the Sri Lankan army impute Tamil people with the political opinion that they are associated with the LTTE.
12. In 1999 my older brother, [Mr A] and three other members of my family (all young Tamil males) were taken by the Sri Lankan Army where he was detained, interrogated and beaten for 3 days. They were being accused of being associated with the LTTE.
13.The SLA claimed that they had information that our family were assisting the LTTE. This information had been given to the SLA by some village members who had a previous misunderstanding with my father.
14.My father and mother went to the leader of our village and the Church priest and told him what had happened and they appealed to the SLA to release my brother and other family members.
15.After my brother was released my brother was ordered to present to the SLA and sign a document every month.
16.Then in May 2000 my brother [Mr A] was called in by the SLA for interrogation again. He went in the morning and he was not released until the afternoon. My parents were waiting outside for my brother. Then around 5pm they called my father into the office for interrogation. Then both my brother and father were released at around 6pm.
17.After this incident my mother, out of fear, stopped sending my brother out to work on the farm with my father. It was my families land and we grew vegetables on the land. My father would bring the vegetables back to the house [and] my brother would be responsible for taking the vegetables to the market to sell. With the money raised from the vegetables he would buy all of the groceries and supplies that our family required.
18.The SLA would do round ups around 4am. One day in around May/June 2000 my father was working on our farm at around 5 am when the SLA captured him and severely beaten.
19.At around 7am my mother and brother went to the farm to take him his breakfast, she did this every day. When she arrived to the farm she found my father severely beaten.
20.My mother hired a trishaw and he was taken to the hospital. My father was in the hospital receiving treatment for his injuries for one week.
21.After this incident his heath was never good. [Sentence deleted]. My father could not longer work on the farm so it was my mother and my brother [Mr A] who were responsible for the farming. In October 2000 my brother [Mr A] went missing and we have never seen or heard from him again.
22.We are sure that it was the SLA who had taken him because he had been taken in for interrogation so many times. My mother sought the assistance of the village heads and the Church, however the SLA claims to know nothing of the disappearance of my brother.
23.After approximately 6 or 7 months of the disappearance of my brother, the SLA came to our house interrogating my father about my brother's whereabouts. The SLA accused my brother of assisting the LTTE. When my father denied this the SLA officers beat my father again
24.Then in August 2002 my father passed away because of all of the injuries that he had sustained from the beating by the SLA. We could not afford the necessary medical treatment for him.
25.Since my father passed there was none to support the family. There was a great deal of pressure on my mother to do the farming. I would help my mother after school until in 2004 it became too much and I left school so that I could do the farming full time. I also did some labouring jobs to help support the family.
26.In May 2006 the SLA came again to my house interrogating my mother about the whereabouts of my brother. I was threatened that I should inform them about my brother's suspected association with the LTTE. When they came to interrogate me they would beat me.
27.After the SLA came twice interrogating me my mother became very fearful that one day they would come and take me. I was the last remaining male in the family. So in 2009 she made the decision to try and get me out of Sri Lanka for my safety.
28.From 2007 until went to stay in hiding with my uncle in a different district in Jaffna because I was fearful of being taken by the SLA.
29.Initially my mother sent me to Colombo so that I could get my passport and make arrangements with an agent to get me to [Country 1]. My mother mortgaged the land in order to pay for me to go to [Country 1].
30.Since I had left the area the SLA have come to my mother's house enquiring about me whereabouts. My mother informed them that I had gone to [Country 1]. The SLA demanded that my mother give them my phone number, however I never received a call from them.
31.The last time that the SLA came looking for me was in 2010. My mother told me never to return to Sri Lanka. It would be worse for me because I had been missing from Sri Lanka for so long and the SLA would accuse me of being training the with LTTE.
32.In [Country 1] I registered with the UNHCR, however this did not give me the legal of residence or to work there.
33.I heard from an agent that there would be possibilities of refuge in Australia, so in June 2012 I started to make arrangements to flee [Country 1] and come to Australia.
What I fear may happen to me if I return to Sri Lanka.
34.If I return to Sri Lanka I fear for my life. I fear that I will be abducted and go missing just like my brother.
Who I think may harm/mistreat me in that country and why.
35.I believe if I return to Sri Lanka the Sri Lankan Army will harm or mistreat me because they are still making enquiries about me.
36.My father was badly beaten which led to his death and I knew that it would happen to me in time.
Why do I think this will happen to me if I go back?
37.I know this will happen to me because I am Tamil I have been imputed with the political opinion of being associated with the LTTE.
38.      I also fear persecution for seeking asylum in a western country.
Why I think the authorities of that country cannot or will not protect me if! go back to that country.
39.The authorities in Sri Lanka cannot and will not protect me because they are the ones that are persecuting me because of my ethnicity as a Tamil.
40.The authorities are Singhalese and they are not interested in protecting Tamils, in fact they try to cause problems for Tamils.
41.The Sri Lankan Government are the ones making and enforcing the laws in relation to failed asylum seekers.
Why I think relocation to another area in my country is not a reasonable option.
42.I cannot relocate to anywhere in Sri Lanka because Tamil's face persecution in all parts of Sri Lanka. Tamils have to report and register with the authorities wherever they move in Sri Lanka. My national ID identifies me as being from Jaffna and this would always cause me trouble.
43.I do not have any contacts or family living in other parts of Sri Lanka. I have a limited education and would not be able to work or establish a life.
Other reasons I cannot return to my home country — Complementary protection:
44.I fear if I am returned to Sri Lanka I will suffer arbitrary arrest and detention, imprisonment, physical assault and torture, possibly death at the hands of the Sri Lankan Authorities because of my ethnicity as a Tamil, the imputed opinion that I have an association with the LTTE and also because I have sought asylum in a Western Country.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts the applicant travelled to Australia by boat from [Country 2] without a travel document but provided several documents identifying his name and place of birth, including copies of his national identity card, passport, birth certificate and family ration card. 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.
The applicant claims to fear harm from the Sri Lankan Army (SLA) because he is Tamil and he and his family have been imputed with a political opinion of being associated with the LTTE.
The Tribunal accepts that the applicant and his family lived in [Village 1], in Jaffna district. His evidence in the hearing was that the area he lived in was an army controlled area and was never under the control of the LTTE during the war.
The applicant claimed that his brother was taken by the SLA in 1999, detained for three days, interrogated and beaten, along with other members of his family. In the statutory declaration attached to his protection visa application he stated that his brother was taken with three other members of his family (all young Tamil males). However, in the hearing when asked which members of his family his brother was detained with, the applicant stated that it was his uncle’s son and his sister’s husband, his brother-in-law. When the discrepancy in his evidence regarding the number of people his brother was detained with in 1999 was put to the applicant, he claimed he did not say there were three others but three people including his brother.
The applicant claimed in his statutory declaration attached to his protection visa application that his brother was detained on suspicion of being associated with the LTTE. He stated that the SLA claimed to have received information by some village members, who had a previous misunderstanding with the applicant’s father, that his family were assisting the LTTE. In the hearing when asked about this misunderstanding that his father allegedly had with others in his village, the applicant stated he did not know why “they told like that” but referred to his family having lots of money and land and a good life there. When the Tribunal again referred the applicant to his statutory declaration and his claim that the information given to the SLA was from villagers who his father had a previous misunderstanding with, the applicant stated that he did not know what problem his father had with the village people because he was small at the time and his mother had told him. In response to the Tribunal’s question as to whether he asked his mother what the misunderstanding was, he stated that his mother told him these people are like this and they do not like people living “good” so they tell about them.

The Tribunal notes in contrast, in the submission from the applicant’s previous adviser to the Tribunal received on 11 May 2015, it was stated that the applicant had instructed that his family was suspected of LTTE involvement because his brother (as opposed to his family) was wealthy and his family fed and housed several other families that had been displaced from LTTE controlled areas. The Tribunal notes that this is somewhat different to the applicant’s evidence in the second hearing which suggested that his family assisted only one family that had come from an LTTE controlled area. The applicant had further instructed that other villagers may have also reported his family due to jealousy over his brother’s wealth. According to the contents of the submission, the applicant did not provide details regarding his brother’s alleged wealth or the housing of displaced Tamils in his family’s home until after the delegate’s refusal of his application. When asked about his brother in the hearing, the applicant stated that his brother’s occupation was [details deleted]. The Tribunal asked the applicant how his brother became wealthy. He stated that his brother was a respectable person in their district and because of his work, their parents supported him. The Tribunal asked the applicant what he meant when he said his brother was wealthy. He stated that he was an influential person and helped other people with his money and he had lands. The Tribunal asked the applicant if his brother owned property independently from his father and the rest of his family. He stated yes, his brother had paddy field land and built a house and helped people who did not have a house to come and live in his house. When the Tribunal queried whether his brother built a house on land that he had in his own name, the applicant stated that his brother built a house on his mother’s land. The Tribunal asked the applicant if his brother lived in the house he built or if he used it for others. The applicant stated that they all lived in that house and before they lived there, they were living in a smaller house on the same land.
The Tribunal does not accept that the applicant’s brother was a wealthy person, in that he had lots of money and lots of land or that he assisted displaced people by providing them food and shelter. The Tribunal does not accept on the evidence before it, namely the applicant’s oral evidence in the hearing, that the applicant’s brother owned any land himself. The Tribunal found the applicant’s evidence regarding any land owned by his brother to be vague. While the Tribunal does accept that the applicant’s brother may have assisted in building a larger house for his family to live on land owned by their mother given that his brother worked as a [occupation], it does not accept that his brother built a house and helped other people who did not have a house to live in this house. According to the applicant’s evidence in the hearing, his family sheltered displaced people from 1995, when the applicant’s brother was just [age] years old. The applicant claimed that his brother spoke to his mother and “they” let them stay there and his brother would bring those people and tell them to build a house on that land. When the Tribunal noted that this seemed something more like his parents would decide to do and not his teenage brother, the applicant changed his evidence to his brother helping people in 1998 and 1999. The Tribunal finds it unconvincing that a teenager would have made the decision to give the applicant’s family’s land to people displaced by the war for them to live and build a house on. Additionally, taking into consideration the applicant’s delay in raising details regarding his brother’s wealth and the assistance his brother and his family allegedly provided displaced families, the Tribunal is further satisfied that these claims are not credible.
The Tribunal has taken into consideration the applicant’s explanation for his delay in providing these details, as outlined in the submission, that he was too young at the time these events occurred to understand their significance and it was only recently that he realised the relevance of these events after speaking with his mother. The Tribunal finds the timing of this realisation to be more than just a coincidence and given his evidence in the hearing was that his mother had advised him about the misunderstanding his father had with some villagers, which was the original reason he had provided in his statutory declaration for why the villagers had allegedly informed against his family to the SLA, the Tribunal does not accept that his mother would not have alerted him to this other reason for why the villagers accused his family of assisting the LTTE, only after the delegate refused his application and not earlier. The Tribunal has also taken into consideration the applicant’s explanation in the second hearing for his failure to mention the assistance his family allegedly provided families or family from LTTE controlled areas which was the basis for the suspicions that his family were involved in the LTTE, that at the time of his arrival he was in a bad and confused state and was unable to tell everything in detail. The Tribunal does not accept that this adequately explains why the applicant provided a different reason in his statutory declaration attached to his protection visa application, made several months after his arrival in Australia, for why his family were suspected of being associated with the LTTE or why he did not raise either the assistance his family had allegedly provided or his brother’s wealth prior to the submission which was received by the Tribunal shortly before the hearing with the previous member. As such, it does not accept that his family was suspected of LTTE involvement because his family had fed and housed other families displaced from LTTE controlled areas or because of his brother’s wealth.
Despite the Tribunal’s doubts regarding the reason why the applicant’s brother was detained in 1999, the Tribunal accepts that the applicant’s brother may have been detained for three days in 1999, during which time he may have been interrogated about possible connections he may have had with the LTTE and he may have also been beaten during his detention. The Tribunal finds it plausible and consistent with country information regarding the suspicion the SLA had of young Tamil males, particularly during the conflict, that the applicant’s brother and other relatives may have been suspected of being associated with the LTTE and questioned on this basis. However, the Tribunal does not accept the reason for the SLA’s interest in the applicant’s brother was the result of villagers reporting the applicant’s family to the SLA or the Sri Lankan authorities or because the applicant’s family had provided assistance to Tamils from LTTE controlled areas or because his brother was considered wealthy. The Tribunal finds the applicant has provided varying evidence regarding why the SLA suspected his family of being involved with the LTTE and therefore it does not accept that the SLA received information from other villagers about his family or his brother or that they had any suspicions that his family were associated with the LTTE for these reasons.
While the Tribunal is prepared to accept the applicant’s brother may have been detained, interrogated and beaten in 1999, it does not accept that the applicant’s brother was required to report every month to the SLA or that he was detained a second time. The applicant claimed in the hearing, when asked what happened the second time his brother was taken by the SLA, that his brother was beaten and he had to sign every month. He also explained the Grama Sevak and the priest went to the army. However, the Tribunal notes in the applicant’s statutory declaration attached to his protection visa application the applicant claimed that the leader of the village (Grama Sevak) and the priest appealed to the SLA to release his brother when his brother was detained the first time in 1999. He also claimed after his brother was released he was ordered to present to the SLA to sign a document every month. The Tribunal notes that there is nothing in the applicant’s statutory declaration attached to his protection visa application to indicate that the priest and Grama Sevak were involved at all during the applicant’s brother’s second period of detention or that it was at this time that he was ordered to report monthly to the SLA. The Tribunal also notes that the applicant claimed later in the hearing that SLA had come to his family’s home looking for his brother two or three times after he was first arrested and the third time they caught his brother and his brother was released with the priest’s help and then every month he had to go and sign. The Tribunal notes that there was nothing in the applicant’s statutory declaration attached to his protection visa application suggesting that the SLA came to his family home several times after he was released in 1999 or that it was on the third occasion that his brother was taken and as discussed above, the applicant’s evidence in his statutory declaration was that the priest assisted in his brother’s release during the first occasion he was detained in 1999.
In fact, the Tribunal notes that in the applicant’s statutory declaration, he claimed that after his brother was released from detention in 1999 and was ordered to present and sign a document every month, his brother was called in by the SLA for interrogation in May 2000 and he went in the morning and was not released until afternoon. He claimed his parents were waiting outside for his brother and then around 5pm they called his father into the officer for interrogation and then both his brother and father were released at around 6pm. While the applicant claimed in the second hearing that he did not tell it that way and had said every month his brother had to report and when he went to report, he was stopped for interrogation, the Tribunal notes, as it did in the hearing, that this information was included in the applicant’s statutory declaration, which he signed as true and correct. Further, as the Tribunal highlighted in the hearing, the interpreter declaration attached to the statutory declaration confirms that the contents of the statutory declaration was interpreted to the applicant. In these circumstances, the Tribunal does not accept that what was included in the statutory declaration was not what the applicant had claimed. The Tribunal does not find the information included in the applicant’s statutory declaration attached to his protection visa application, outlining his claims and experiences in Sri Lanka, are consistent with his somewhat vague evidence in the hearing regarding his brother’s second arrest.
Further, when the Tribunal put these discrepancies in his evidence regarding the SLA’s visits to his family home looking for his brother after his arrest in 1999 and the circumstances of his brother’s alleged second arrest, the applicant claimed that after his brother’s detention in 1999 he was instructed to sign once a month and once he delayed in reporting, he was detained. He subsequently claimed, when the Tribunal noted that he had not mentioned anything before this second hearing about his brother being detained because he had delayed in reporting, that his brother did not delay in reporting but that he went there as usual and they delayed him.
The Tribunal finds the applicant has provided vague and conflicting evidence regarding the circumstances surrounding his brother’s alleged second detention and as such, the Tribunal does not accept that the applicant’s brother was required to report to the SLA in May 2000 or that he was taken by the SLA after being questioned by them in 1999, during which time he was interrogated again and the applicant’s father was also interrogated. It also does not accept that his brother was required to report to the SLA on a monthly basis after being detained for three days in 1999 or that there were two or three visits by the SLA to the applicant’s home looking for his brother after his brother was arrested and released in 1999.
It therefore follows that the Tribunal does not accept the applicant’s claim in his statutory declaration that after this alleged second incident when the applicant’s brother was allegedly interrogated in May 2000, the applicant’s mother stopped his brother from going out to work on the farm, out of fear. According to the applicant’s evidence in the statutory declaration attached to his protection visa application, instead of travelling [to] the family farm, the applicant’s brother would be responsible for taking the vegetables to the market to sell. The Tribunal notes in the hearing the applicant claimed that his brother would go to [the] markets [which] were about [distance]km away, early in the morning. The Tribunal finds it implausible that if the applicant’s mother or parents were scared for the applicant’s brother’s safety, allegedly as a result of the second incident he had with the SLA, that they would stop him going to their farm less than [distance]km from their home and instead allow him to travel some distance on his bike early in the morning, when the SLA would do round ups according to the applicant’s evidence in his statutory declaration, thereby placing him at greater risk, given he may have been required to pass through checkpoints.
The applicant claimed that in addition to his brother being interrogated by the SLA, his father was beaten by the SLA. In his statutory declaration attached to his protection visa application, the applicant claimed that one day in around May/June 2000 his father was working on their farm at around 5am when the SLA, who conducted round ups around 4am, captured his father and severely beat him. The applicant claimed after this incident his father could no longer work on the farm because his father’s health was never good. However, in the hearing the applicant claimed that his father was beaten at the family farm in 1999. He also claimed that his father had been caught by the SLA twice during roundups and beaten, as well as his brother, yet there was nothing in the applicant’s statutory declaration to indicate that his father had been caught twice by the SLA during roundups and beaten, or that his brother had also been caught in any round ups, as he claimed in the hearing.
The Tribunal does not accept that if the applicant’s father had been apprehended by the SLA during two round ups and beaten, or alternatively was rounded up as part of an information collection exercise as he claimed in the second hearing, that the applicant would fail to mention this in his statutory declaration. As such, the Tribunal does not accept that the applicant’s claim in the hearing that his father was caught twice by the SLA during round ups and beaten are credible. The Tribunal also has significant doubts about the applicant’s claim regarding the incident at the family’s farm when his father was severely beaten by the SLA. Even leaving aside the minor inconsistency in the applicant’s evidence in the hearing that this incident occurred in 1999, as opposed to May/June 2000, the Tribunal has taken into consideration the evidence provided in the submission from the applicant’s adviser received on 11 May 2015 in which it was stated that the applicant had instructed that his father died a few weeks after being beaten. The Tribunal notes the death certificate submitted by the applicant states that the applicant’s father passed away on [date] August 2002, which was several years after 1999 and more than two years after May or June 2000 when the applicant alleges this incident occurred. When the Tribunal put this to the applicant in the second hearing, the applicant stated that he did not say that his father died in two weeks but in two years. However, the Tribunal notes the applicant subsequently gave evidence in the second hearing that his father was beaten in the same month he passed away, in August 2002. As the Tribunal put to the applicant, he had made no mention prior to this second hearing that his father had in fact been beaten in the same month that he had died and as it explained to the applicant, it finds it implausible that he would not have raised this significant information at an earlier stage, particularly given that the cause of his father’s death was discussed in the delegate’s decision and he was also questioned about this by the previous Member in the first hearing. The Tribunal finds the applicant’s evidence about this beating in August 2002 raises serious doubts about the applicant’s credibility generally and those of his claims regarding not only his father’s experiences but also those of him and his brother. The Tribunal is of the view that the applicant has embellished this aspect of his claim in an effort to bolster his case and given the significance of this claim, it leads the Tribunal to find he is not a witness of truth.
Considering all the evidence, the Tribunal does not accept that the applicant’s father died as a result of any beatings or torture he received from the army or any other authorities. The Tribunal has taken into consideration the information in the death certificate submitted by the applicant which states specifically that the cause of the applicant’s father’s death was “[Condition] (sic) arrest due to [medical conditions deleted]”. The Tribunal finds that there is nothing in the death certificate to suggest the applicant’s father’s death in August 2002 was related to any physical injuries he may have suffered as a result of being tortured or beaten either at his farm in 1999 or May/June 2000 or six or seven months after the applicant’s brother disappeared and the SLA allegedly came to the applicant’s family’s home and interrogated his father about his brother’s whereabouts during which time his father was beaten again by the SLA or on any other occasion including an alleged incident in August 2002.
Taking into account the cause of death recorded on the death certificate for the applicant’s father, the inconsistency in the applicant’s evidence regarding the number of times his father had been rounded up and beaten and the inconsistency in the applicant’s evidence as to when his father was severely beaten by the SLA on his farm, the Tribunal does not accept that the applicant’s father was beaten by the SLA during any round ups. The Tribunal also does not accept that the SLA came to the applicant’s home 6 or 7 months after his brother’s disappearance to interrogate his father about his brother’s whereabouts and beat him or that they came again in August 2002 and beat the applicant’s father which allegedly led to his death. As discussed above, while the Tribunal accepts the applicant’s brother may have been questioned once about the LTTE, it does not accept for the reasons provided, that there was any continuing interest in his brother. It therefore does not accept that several years after the first and only time the applicant’s brother was questioned by the SLA, they would come looking for the applicant’s brother.
While the Tribunal does not accept, for the reasons discussed above, that there was any continuing interest in the applicant’s brother after he was interrogated in 1999 including visits by the SLA to the applicant’s family home, the requirement for his brother to report monthly to the SLA or being taken or called in by the SLA and interrogated again in May 2000 or at any other time, the Tribunal does accept on the evidence before it, including a certificate from the Red Cross dated [February] 2003 confirming that the applicant’s brother was reported missing since [October] 2000 and his details registered with them on [date] November 2002, that the applicant’s brother went missing in October 2000. According to the applicant’s evidence in the hearing his brother was taking produce to [a] market and he never returned and it was assumed that the SLA was responsible because the area which his brother travelled through was army controlled. In his statutory declaration attached to his protection visa application, he claimed he was sure it was the SLA because his brother had been taken in for interrogation so many times.

As discussed above, the Tribunal does not accept that the applicant’s brother had been interrogated on more than one occasion, therefore it does not accept the applicant’s suspicions that the SLA were responsible because they had interrogated his brother many times. While the Tribunal accepts that there is substantial independent evidence regarding the disappearance of young Tamil males, many of which the SLA and other Sri Lankan authorities were said to be responsible for, it also notes that there were other groups that engaged in such acts including the LTTE. On the limited information provided by the applicant regarding the circumstances of his brother’s disappearance, it is unable to be satisfied who was responsible for the applicant’s brother going missing. However, it does accept, given the country information related to the number of people who were abducted or disappeared during the conflict, that the applicant’s brother went missing in October 2000 and has not been heard from since.
Though the Tribunal accepts that the applicant’s brother may have gone missing in October 2000, the Tribunal does not accept that six or seven months later the SLA came to the applicant’s family home and interrogated his father about his brother’s whereabouts. For the reasons discussed above, the Tribunal does not accept that the applicant’s brother was of any continuing interest to the authorities including the SLA after his arrest in 1999. It therefore does not accept that several years after the applicant’s brother’s one and only encounter with the SLA in 1999, they would come looking for him. The Tribunal also does not accept that if the SLA was responsible for the applicant’s brother’s disappearance as the applicant has claimed, that they would come looking for him 6 or 7 months after his brother had gone missing. The Tribunal does not accept the applicant’s explanation that the reason for the SLA’s enquiries was to show that they were not responsible for his disappearance. Considering the country information, including that provided by the applicant’s previous adviser in submissions to the Tribunal, regarding the civil war and the actions of the SLA during the conflict, the Tribunal does not accept that the SLA would have made any effort to try and displace any suspicions on them for his brother’s disappearance.
Similarly, the Tribunal finds it implausible that six years after the applicant’s brother’s disappearance, the SLA came again to the applicant’s family home and interrogated his mother about his brother’s whereabouts and also interrogated him about his brother and beat him. The Tribunal does not accept the applicant’s explanation provided during the first hearing that the SLA wanted to show they did not make any mistake or that they wanted to turn the matter around so the fault would be on his family’s side because they may have thought they would have to answer questions from high ranking officers. The Tribunal finds it far-fetched that the SLA would have gone to such effort, particularly in light of the number of people who disappeared or were killed during the war, including in the north of the country. Nor does the Tribunal accept that the authorities’ alleged enquiries were related to any efforts that were made by the applicant’s mother to try and locate the applicant’s brother.
The Tribunal found the applicant’s evidence regarding what allegedly happened to him during these visits to be inconsistent. In the hearing with the previous member, the applicant claimed that he was beaten on his ears and with a long stick on his back. Yet, according to the delegate’s decision, a copy of which was provided to the Tribunal, it states the applicant had claimed that they had grabbed him by the collar and he did not mention anything about being beaten on his ears or on his back with a stick. As the Tribunal put to the applicant in the second hearing, it does not accept that when specifically asked about what had happened to him during these alleged interrogations, that he would fail to mention that he was beaten given the seriousness of this treatment, and instead just claim to have been grabbed around the collar. The Tribunal does not accept the applicant’s explanation that that was his first interview and he could not explain everything at that time. The Tribunal notes the applicant would have participated in at least one interview prior to the interview with the delegate, soon after his arrival in Australia. Nor does the Tribunal accept that the applicant would not have been in a position to state what he allegedly experienced at the hands of the SLA or that he would not subsequently provide consistent evidence about this alleged experience. The Tribunal accepts the applicant may have felt pressure or stress during his hearings with the Tribunal, as well as possibly during other interviews he has had since arriving in Australia, however the Tribunal does not accept that this adequately explains the discrepancy in his evidence regarding his own personal experiences. As the Tribunal put to the applicant in the hearing, it expects some level of consistency in his evidence of what harm he was allegedly subjected to, particularly given the significance of this claim.
The Tribunal has also taken into consideration the inconsistent evidence the applicant has provided in relation to where he was living after these alleged visits by the SLA. The Tribunal notes in the applicant’s statutory declaration attached to his protection visa application, the applicant claimed that in 2007 he went and stayed with an uncle in a different district in Jaffna and that his mother initially sent him to Colombo so he could get his passport. There was nothing in his statutory declaration to indicate he spent a period of at least a year living in Colombo. However, in his protection visa application the applicant provided residential details showing that he was living in [Village 1] from [his birth] to [date] October 2007 and in Colombo from [October] 2007 to [October] 2009 (which was the original departure date included in the applicant’s protection visa application before being amended to 2008). In the delegate’s decision, a copy of which was provided to the Tribunal, the applicant’s evidence was that he was living in Colombo from 2006 to 2008. Further, as the Tribunal put to the applicant in the hearing, in accordance with the requirements in s.424AA of the Act, the record of the applicant’s entry interview provides that the applicant stated that he had lived in his village in [Area 1] from birth to 2008 and he made no mention about living either in Colombo or in another part of Jaffna district with his uncle. The Tribunal does not accept the applicant’s explanation for the discrepancy in this evidence, as compared to his later evidence, that he was in a confused state at the time of the entry. The Tribunal does not accept that the applicant would fail to mention that he lived in Colombo for a period of a year prior to his departure from Sri Lanka, if in fact he had been.
Further, the Tribunal has had regard to the applicant’s vague evidence regarding who he allegedly was living with in Colombo. The Tribunal notes in the hearing with the previous Member, the applicant stated that the person who owned the house where he lived with his mother and sister was a politically influential person yet he did not know the name of the person. When asked what political connections this person had, he stated that he was a member of the government. However, when asked which party, the applicant subsequently claimed this person was a teacher, a public servant. When the Tribunal explained to the applicant that it was asking him about the political connections this person had given he had claimed he was politically influential, the applicant stated that he did not know. In the second hearing, the applicant claimed that the person he was living with was working for the police so they had police support and influence.
Given the inconsistencies in the applicant’s evidence over time regarding his residence in Sri Lanka, particularly in the year before his departure from the country, and the vagueness in his evidence regarding the person he allegedly rented accommodation from in Colombo, the Tribunal is further satisfied that the applicant was not visited and threatened or beaten by the SLA or any other authorities in 2006 about his brother’s whereabouts and as a result of these particular alleged events, he left his home and went and lived either at an uncle’s house in another area in Jaffna district or in Colombo.
Based on the above, while the Tribunal accepts that the applicant’s brother went missing in October 2000, over 15 years ago, the Tribunal does not accept that following the applicant’s brother’s disappearance there were any visits to his home by the SLA, the CID, army intelligence or anyone else asking about his brother’s whereabouts, including 6 or 7 months after his brother’s disappearance, in August 2002 or twice in 2006. The Tribunal does not accept that any enquiries were made of the applicant’s father, his mother or the applicant or that the applicant was beaten or threatened by the SLA in 2006. The Tribunal does not accept that as a result of these alleged visits in 2006, the applicant left his home and went and lived either with an uncle in Jaffna district or in Colombo. Nor does the Tribunal accept that since the applicant departed Sri Lanka there have been any enquiries made about his whereabouts by the CID, army intelligence or any other authorities from his mother, including in 2010 as he claimed in his statutory declaration attached to his protection visa application.
The Tribunal accepts that the applicant may have had the assistance of an agent to obtain his passport and arrange his travel to [Country 1]. It does not, however, accept that the applicant was questioned by the CID or that he gave money to the CID as he claimed for the first time in the submission that was received from the applicant’s previous adviser prior to the first hearing with the previous Member. Given the significance of the applicant’s subsequent evidence that he was questioned by the CID and had to pay them a bribe in order to leave the country, the Tribunal does not accept that the applicant would fail to mention this until after the delegate’s decision. The Tribunal does not accept that the applicant would not appreciate the importance of this claim.
As the Tribunal does not accept that the applicant was of any interest to the authorities in the past in Sri Lanka because of his brother’s alleged wealth or his family’s alleged assistance to Tamils displaced from LTTE controlled areas or an imputed political opinion of support for the LTTE, particularly from 2006 when he claimed they allegedly questioned him about his brother’s whereabouts six years after his brother went missing, the Tribunal does not accept that if the applicant returns to Sri Lanka, he faces a real chance of persecution, now or in the reasonably foreseeable future, because of his brother or any imputed political opinion of support for the LTTE.
The applicant also claimed that he fears harm on his return to Sri Lanka because he was on [Ship 1] and enquiries had been made by the authorities, particularly army [intelligence]. The Tribunal notes the applicant only raised his alleged presence on this ship during the first hearing with the previous Member. There was nothing in the applicant’s protection visa application to suggest he had spent six months in [Country 2] at the end of 2009 and early 2010. Rather, in his protection visa application he claimed to have been in [Country 1] from [October] 2009 (or 2008 as he subsequently amended) to [June] 2012. When asked in the second hearing why he did not mention anything in his statutory declaration about being on this ship or the authorities coming and asking his mother about [him], the applicant claimed that his lawyer had told him if he did not have any evidence this would not be accepted. The Tribunal does not accept that the applicant’s adviser would have advised the applicant that his alleged presence on [Ship 1] could not be included in his claims unless he had evidence. The Tribunal notes that there are several aspects of the applicant’s claims, including the alleged visits to his home in 2006, which he has not submitted substantiating evidence. Further, the Tribunal notes when the first Tribunal queried why he had not raised this in his statutory declaration attached to his protection visa application, the applicant had stated he is now relaxed and can tell and he had told his lawyer he had made mistakes like this. There was nothing in the applicant’s earlier evidence to suggest that he had been advised by his lawyer that this information could not be included because he had no evidence to support this claim.
The Tribunal has also taken into consideration the applicant’s evidence in his entry interview regarding where he lived before coming to Australia, his time since he left Sri Lanka and his travel route to Australia and the applicant did not mention anything about being on board [Ship 1]. As the Tribunal put to the applicant in the hearing, in accordance with the requirements in s.424AA of the Act, the relevance of this information is that his failure to raise this claim during the entry interview when providing detailed information about his travel since departing Sri Lanka, raises serious doubts that he was on this boat or ship. While the applicant, in response, insisted he was on [Ship 1] or boat, given the applicant’s delay in raising this claim regarding his presence on [Ship 1], the Tribunal does not accept that he was on this ship as he claimed or that there were any enquiries made by army intelligence, CID or any other authorities from his mother about [him]. The Tribunal finds that the applicant has embellished this aspect of his claim in an effort to bolster his case. [Details deleted]. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future for reasons of an imputed political opinion based on his alleged presence on [Ship 1].
The Tribunal has considered whether the applicant will face a real chance of serious harm for reasons of his Tamil ethnicity. The Tribunal has taken into consideration the country information it put to the applicant in the hearing, which suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009. While UNHCR in their guidance dated 2010 does refer to some reports that young ethnic Tamil men from the north and the east may be disproportionately affected by security measures on account of their suspected affiliation with the LTTE, they also stated that there was no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity. In the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, the UNHCR indicates that not all Tamils from northern and eastern Sri Lankan are vulnerable to harm due to imputed links with the Liberation Tigers of Tamil Eelam (LTTE). As the Tribunal put to the applicant in the hearing, UNHCR provides that people with “more elaborate links to the LTTE” may require protection. This includes persons who held senior positions with considerable authority in the LTTE civilian administration, former LTTE combatants or “cadres”, former LTTE supporters involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists or persons with family links or who are dependent on or other otherwise closely related to persons with the above profiles. The Tribunal does not accept that the applicant falls within any of the profiles identified by UNHCR as being at risk of serious harm. The applicant’s evidence in the hearing was that neither he or his family members had any links to the LTTE, and while the Tribunal accepts that the applicant’s brother was detained and questioned for three days in 1999, the Tribunal does not accept that the applicant’s brother was of any continuing interest to the authorities. Based on the Tribunal’s findings above, it does not accept that either the applicant or any other members of his family were ever suspected of having links with the LTTE in the past. In light of the independent evidence regarding the improved situation in the country and the Tribunal’s findings regarding the applicant’s past experiences in Sri Lanka, the Tribunal does not accept that the applicant will be imputed with having links to the LTTE or a pro-LTTE political opinion in the future.
The Tribunal has also taken into consideration the guidance decision GJ v. Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) made by the Upper Tribunal (Immigration and Asylum Chamber) in the UK. As the Tribunal put to the applicant in the hearing, according to this decision the current categories of persons at risk of persecution or serious harm on return to Sri Lanka are individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state because they 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. In considering the applicant’s profile and past experiences in Sri Lanka, the Tribunal has difficulty accepting the applicant will be perceived as a present risk to the Sri Lankan state or government and as such this decision suggests he does not fall within the category of persons at risk of serious harm. The Tribunal does not accept the applicant’s assertions, made during the hearing, that his presence in other countries such as [Country 1] and Australia would result in him being imputed with a political opinion, including through a perception that he had been involved in, as he claimed, foreign LTTE and other movements. The Tribunal has had regard to information it put to the applicant in the hearing from the UK Home Office which provides that the Sri Lankan authorities approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The authorities know many Sri Lankan Tamils travelled abroad as economic migrants. It was also noted that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities’ on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk. The Tribunal does not accept on the applicant’s evidence, that he engaged in any anti-government activity in Sri Lanka prior to his departure or that he has participated in such activities since departing the country, including in Australia. As such, in light of this information, and the Tribunal’s findings in relation to the applicant’s profile, it does not accept that the applicant will be perceived to be a threat to the integrity of Sri Lanka as a single state.
The Tribunal notes the applicant’s evidence in the first hearing that the new government is saying they will do things for Tamil people but in the north and east they do not give land properly. The applicant also discussed the destruction of temples to build other buildings and asserted that the new government is spreading their culture and settling their people which is destroying the Tamil culture. He claimed if people can’t speak Sinhalese they cannot get work and as a result there are 12,000 Tamil graduates in Jaffna without any work. The Tribunal has taken into consideration information it put to the applicant from DFAT reports dated 15 February 2015 and 18 December 2015, discussing the situation in the north and east of the country since the cessation of the conflict. The reports provide that the security situation in both the north and east had greatly improved since the end of the conflict and the humanitarian situation in these areas has also improved. The end of the conflict had allowed reconstruction to occur, including the repair of the main highway, railway and ports linking northern Sri Lanka to the rest of the country. In turn, this had helped to reduce the cost of transport and of basic goods in northern Sri Lanka. Although military and security forces maintained a significant presence in the Northern Province, including Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna Districts, according to the Government of Sri Lanka, the number of personnel had been reduced by approximately 30 per cent since the end of the conflict. Within days of assuming office, the new government led by President Sirisena appointed two retired senior civil servants as Governors in the Northern and Eastern provinces, with a view to initiating measures to strengthen civilian administration. These posts were previously held by retired military personnel. The Government had also commenced discussions on progressively reducing High Security Zones in the Northern Province and had decided to release land to the public. The government had returned thousands of acres of land confiscated during the war by the military in the island’s east and north, had allowed 39 suspected former Tamil rebels, who had been in prison for years accused of abetting terrorism, to be released on bail and decided to release another 20 to undergo rehabilitation and receive vocational training and had recently lifted a ban imposed by Rajapaksa on 8 Tamil organisations and 267 individuals who were accused of being a threat to national security. DFAT assessed that there had been an overall decrease in monitoring in 2015, but some individuals in the north and east still reported being questioned and observed by the military and reported that the sizeable military presence remained a factor in aspects of civilian life. Further, it was stated that the cessation of the forced registration of Tamils suggested the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the conflict. DFAT assessed that monitoring and harassment of Tamils has decreased under the Sirisena government and on a day-to day basis, the Tamil community felt more confident to refuse or question the motives. While the Tribunal accepts that the country information indicates that there is still ethnic tension and some societal discrimination against Tamils, and Tamils may experience difficulty dealing with government agencies especially if they do not speak Sinhalese, it does not accept that there is any evidence before it to suggest that Tamils, including in the north of the country, are denied employment if they are unable to speak Sinhalese. Nor does the Tribunal accept that the current government has any agenda to destroy the Tamil culture or destroy all the temples. The Tribunal finds that any societal discrimination the applicant may be subjected to would not amount to serious harm within the meaning of s.91R(1).

The Tribunal finds that the country information before it, including information provided by the applicant’s previous adviser in their submission to the Tribunal, does not suggest that all Tamils face a real chance of suffering serious harm solely on account of their Tamil ethnicity, nor would it be assumed that all Tamils were connected with the LTTE. While the Tribunal accepts on the independent information that there may be some low level harassment and societal discrimination against Tamils, it does not accept that such treatment, including monitoring or questioning, constitutes serious harm for the purposes of s.36(2)(a). The Tribunal does not accept on the country information before it, and its findings that the applicant had not experienced any problems in the past because of his Tamil ethnicity or any suspected or perceived association with the LTTE, that the applicant would face a real chance of serious harm, now or in the reasonably foreseeable future, from the authorities including the military or the CID or anyone else, if he returns to Sri Lanka because of his Tamil ethnicity, including being imputed with a political opinion of support for the LTTE or as a young Tamil male from the north.
The applicant also claimed that he faces harm on return to Sri Lanka as a failed asylum seeker after a number of years absence from the country. He claimed he will be questioned about how he went to Australia and what information he gave and he will be tortured and beaten because he had said bad things about the country. During the hearing with the previous Member the applicant referred to a boy named [Child 1] who had come by ship and had returned to Sri Lanka in 2009 because his mother had had a heart attack and was taken to the fourth floor and beaten and tortured. When asked how he knew what had happened to [Child 1], the applicant claimed that [Child 1]’s mother had informed this to the people on the ship, presumably [Ship 1], by calling on one of the two phones. She said what happened to her son should not happen to any other people. The Tribunal finds the applicant’s evidence regarding [Child 1] and what allegedly happened to him on his return to Sri Lanka to be vague and lacking in detail. The applicant provided no detail regarding the profile of [Child 1], particularly if he had any association with the LTTE or a criminal history or the circumstances of [Child 1]’s alleged arrest on return to the country. Further, given the Tribunal’s findings above regarding the applicant’s claimed presence on [Ship 1], the Tribunal has serious doubts about the credibility of the applicant’s claims that he learnt about what allegedly happened to this particular person while on the ship and as such, also taking into consideration the limited nature of the information the applicant provided about this person, the Tribunal does not accept his claims are credible.
The applicant claimed that because he had lived abroad for all this time, the government of Sri Lanka will believe he is a supporter of the LTTE. However, as the Tribunal put to the applicant in the hearing, the government of Sri Lanka knows that many people leave the country and go overseas for various reasons not related to politics including to improve their personal situation through employment or education. The Tribunal refers to information from the UK Home Office, which was put to the applicant and discussed above, that the Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The authorities know many Sri Lankan Tamils travelled abroad as economic migrants. The information also provides that large numbers of Sri Lankans travel and live abroad for various reasons including for work and study (and as observed by the Tribunal, have been doing so for many years) and it was noted that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk. As the Tribunal put to the applicant in the hearing, he has not engaged in any anti-government or political activity either before he left Sri Lanka or since he left the country. His evidence to the first Tribunal, when asked if he had been involved with any Tamil activities in Australia was that he has played lots of cricket. The applicant confirmed that he did not come to Australia to do politics and that he was not involved in politics. As such, and taking into consideration the applicant’s profile and past experiences in Sri Lanka, the Tribunal does not accept the applicant’s claim that he will be accused of working with the foreign LTTE and other movements and will be taken to the 4^th floor and beaten.
The Tribunal notes the country information it put to the applicant in the hearing from DFAT’s Country Information Report on Sri Lanka, dated 18 December 2015, that a significant numbers of Tamils have been returned involuntarily to Sri Lanka and from other countries and the independent sources do not indicate that a returnee identified as someone who sought asylum in Australia or another western country, would face a real chance of serious harm. According to DFAT, thousands of asylum seekers have been returned to Sri Lanka since 2009 including from Australia, Canada, US, UK and other European countries but there have been relatively few allegations of torture or mistreatment. DFAT assessed the risk of torture or mistreatment for the great majority of returnees is low including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes including people smuggling or terrorism offences. It was reported that for returnees, police do undertake an investigative process to confirm a person’s identity which would address whether someone is trying to conceal their identity in relation to a criminal or terrorist background or to avoid amongst other things such as court orders or arrest warrants. A person is questioned during this period at the airport while their identity is checked and returnees are treated according to these standard procedures regardless of their ethnicity or their religion and those persons without an adverse profile are released at the airport without further interest. They have further assessed that people are not subjected to mistreatment during this processing at the airport.
While the Tribunal accepts that there are some reports by human rights organisations such as Amnesty and Human Rights Watch, as cited in the applicant’s previous adviser’s submission, suggesting some examples of serious harm to returnees, as the Tribunal put to the applicant, these appear to be isolated examples where individuals have had particular adverse profiles. Further, as the Tribunal noted in the hearing, in the decision of the Upper Tribunal it was observed that the cases reported by organisation such as Human Rights Watch, Freedom from Torture and Tamils Against Genocide in their reports were not a representative sample and that representatives from Human Rights Watch and Tamils Against Genocide both stated that they did not consider every Tamil returning to Sri Lanka was at risk.
The Tribunal has taken into consideration the applicant’s evidence in the second hearing about someone who had returned to Sri Lanka the week of the hearing, on the Tuesday, who was taken to the 4^th floor and a case was brought against him and his parents were unable to release him. The applicant stated that he had seen this in the news and claimed he would end up in the same fate. On the very vague and limited information provided by the applicant about the particular circumstances of this person, the Tribunal does not accept the applicant’s claims regarding this person and what has happened to them on their return to Sri Lanka.
The Tribunal notes the applicant did not depart Sri Lanka illegally, despite his repeated assertions during the second hearing that he had. The Tribunal finds the evidence provided by the applicant confirms that he left Sri Lanka legally on a passport in his own name and as such it does not accept the applicant’s claim that he faces a fine of 2 lakhs and 5 years’ imprisonment. Further, for the reasons discussed above, the Tribunal does not accept that the applicant left the country while the authorities were conducting an enquiry on him or that since he left they had come looking for him, as he claimed in the hearing. The Tribunal finds on the basis of the country information before it, that after initial investigations at the airport, the applicant will be free to leave the airport and as the Tribunal has found, for the reasons discussed above, that the applicant was not of interest to the authorities prior to his departure from the country, it does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, even taking into account the fact that he left before the war ended in 2009.
Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who the Tribunal does not accept was of interest to the authorities or had an actual or perceived association with the LTTE, the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, as a failed asylum seeker or a Tamil failed asylum seeker or a returnee or Tamil returnee or as a person who sought asylum in a western country. Based on the information put to the applicant in the hearing, while the Tribunal accepts that the applicant may be questioned at the airport on his return to Sri Lanka, which the Tribunal does not accept constitutes serious harm within the meaning of section 91R (1) of the Act, the Tribunal does not accept that the applicant will be taken to the 4^th floor and beaten or tortured, as he claimed in the hearing. The Tribunal finds on the basis of the information before it that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his membership of the particular social groups of failed asylum seekers or Tamil failed asylum seekers, returnees or Tamil returnees or people who sought asylum in a western country.
The Tribunal notes the applicant and his wife’s evidence given during the first hearing with the previous Member regarding their relatively recent marriage at the time of that hearing and the fact that his wife’s family did not approve of their relationship while they were together in [Country 1]. The Tribunal finds on the evidence before it that the applicant’s wife is a citizen of [Country 1] and her family all reside there. Therefore, in these circumstances, the Tribunal does not accept that the applicant faces a real chance of serious harm from his wife’s family if he returns to Sri Lanka, which is his country of reference.
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 an imputed political opinion of support for the LTTE based on his brother’s or family’s alleged profile, his Tamil ethnicity, an imputed political opinion based on his Tamil ethnicity or his membership of the particular social groups failed asylum seeker from a western country or returnees from western countries or failed Tamil asylum seekers and/or returnees or failed asylum seekers and/or returnees, being a Tamil originating from the north of Sri Lanka, his prolonged absence from the country or seeking asylum in a western country, from the government or authorities of Sri Lanka including the army or the CID or anyone else. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
Complementary protection obligations
On the basis of the applicants 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).
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.
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, while the Tribunal accepts that the applicant’s brother went missing in October 2000, the Tribunal does not accept that following his brother’s disappearance, any enquiries were made from either the applicant’s father, his mother or the applicant, including twice in 2006 when the applicant was allegedly beaten. For the reasons discussed above, the Tribunal does not accept that the applicant or his family were suspected of being linked to the LTTE and were of interest to the authorities. It therefore does not accept that the applicant faces a real risk of significant harm from the authorities including the army or the CID.
Nor does the Tribunal accept that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is real risk he would suffer significant harm from his wife’s family given that the evidence before the Tribunal is that his wife is a national of [Country 1] and her family all reside there.
The Tribunal notes the applicant’s claims regarding his Tamil ethnicity. The Tribunal refers to the country information, cited above, regarding treatment of Tamils in Sri Lanka and while it accepts that there is low level harassment and discrimination faced by people of Tamil ethnicity generally in Sri Lanka, the Tribunal does not accept that such treatment amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, as defined. Nor does the Tribunal accept that the country information suggests that all Tamils are imputed as being LTTE. Accordingly, in light of the relevant definitions set out at s 5(1) of the Act, and the fact that the Tribunal has found that the applicant did not experience any problems in Sri Lanka because of his Tamil ethnicity including being questioned twice in 2006 about his brother’s whereabouts, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily arrested and detained, imprisoned, physically assaulted and tortured or possibly killed, as he claimed in his statutory declaration attached to his protection visa application, by the Sri Lanka authorities or anyone else because of his Tamil ethnicity or because of an imputed political opinion or for any other reason.
The Tribunal is also not satisfied on the country information that he would face significant harm on arrival in Sri Lanka as a person who had failed to obtain protection in Australia. As discussed above, the Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, based on the country information, the Tribunal does not accept that the process of questioning amounts to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.
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).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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).
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 visa.
Sydelle Muling
Member

[2016] AATA 4852

26 May 2016

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