1400628 (Refugee)

[2015] AATA 3801

1400628 (Refugee) [2015] AATA 3801 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1400628

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Mr S Norman

DATE:24 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2015 at 9:55am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012[1] and the delegate refused to grant the visa [in] January 2014.  On 13 January 2014,[2] the applicant sought merits review of that decision by the (now) Administrative Appeals Tribunal.

   [1] DIBP – from folio 95.

   [2] Tribunal - from folio 30.

3. The applicant appeared before the Tribunal on 23 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

   RELEVANT LAW

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.

   Section 499 Ministerial Direction

6. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is the applicant fears harm in Sri Lanka for reasons that include his ethnicity (Tamil) and a business dispute. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   The Irregular Maritime Arrival Entry Interview:

8. The applicant departed Sri Lanka unlawfully [in] July 2012;[3] and he arrived in Australia as an unauthorised maritime arrival[4] [later in] July 2012.[5] [In] September 2012, the applicant attended an irregular maritime arrival entry interview.[6] The applicant is recorded as claiming (materially) that which is set out below.

   The first departure from Sri Lanka in 1984:

   [3] DIBP – folio 27.

   [4] DIBP – folio 72.

   [5] DIBP – folio 66.

   [6] DIBP – from folio 115.

9. In his Protection visa application, the applicant said he was born in [his home town], Kandy Sri Lanka in September [year]. He said he was a Tamil and a Hindu and is married with [children] (his family still reside in Sri Lanka). When asked at hearing, the applicant said did not fear harm in Sri Lanka for reason of his Hindu faith. Based on his concession, and the country information considered herein, and the fact that none of his family in Sri Lanka were claimed to have experienced any harm for this reason, I do not accept the applicant has a real chance of any harm for this reason, and I have not considered this further.

10. The applicant then explained that in 1983, he was taken into protective custody by the Sri Lanka Navy/Army (hereinafter the SLA).  He said he was detained for approximately 15 days on that occasion prior to being released. At the hearing, the applicant said he was around [age] years old at the time of the above incident and it occurred “when the conflict happened”. At the end of approximately 2 weeks, the applicant was released and he then returned to his own home. The applicant did not say he was mistreated, and he did not say anything else occurred as a result of this incident. After discussing it at hearing, the Tribunal accepts the applicant was detained by the SLA in or around 1983, kept for 2 weeks, and then released.

11. However, as the applicant was fearful after this incident, he first “fled” Sri Lanka 1984. That was because he feared persecution due to the problems between the government and the Tamils. He said this was known as the “[event name]”. He therefore obtained a work visa and “travelled through” [another country] but then principally lived and worked (for approximately the following [number of] years) in [Country 1]. After discussing it at hearing, the Tribunal accepts the applicant lived and worked in [Country 1] between 1984 and 1991.

    The applicant’s return to Sri Lanka in 1992:

12. In 1991,[7] the applicant returned to his home village in Sri Lanka to live with his family. He subsequently married in 1996 (and [children] have arisen from that union). The applicant’s family (including his mother-in-law), reside together in the applicant’s home in [Town 2] in Sri Lanka.

    [7] DIBP – folio 20.

13. The applicant then said that in 1995, his [relative] was living in [a town in] (Northern province).  He was working in a [business] one evening and he was kidnapped and killed.  The applicant did not know who was responsible for the killing but, “at this time there was a lot of random killings and kidnappings of Tamils.” [Details deleted]. The applicant later said his [relative] was abducted “he believed” by the SLA, though the applicant did not know why. After considering this at hearing, the Tribunal accepts the applicant’s [relative was] abducted and killed by unknown persons (suspected to be the SLA) in 1995. The applicant also conceded that nothing else happened to him for the next (almost) 17 years.

    The 2012 incident:   

14. The applicant explained that [in] March 2012, he had a “misunderstanding with a customer he was doing business with”. This businessman had written the applicant “a dishonoured cheque”.  At the time, the applicant was working as [occupation] and temporarily in the town of [Town 3] in [a district] (which the applicant did not dispute was in the south of Sri Lanka).   

15. At hearing, the applicant explained that he lived in [Town 2] with his family (north of Colombo) and he would sometimes work from [Town 2] or sometimes work from Colombo (where his employers business was situated). [Town 2] is some [distance] from Colombo. The applicant was the sole [occupation] for a firm in Colombo that sold [products]; and part of his role was to deliver goods and request monies from customers – including when cheques were dishonoured. The firm was owned by Tamils, had principally Tamil employees, and apparently is still operating in Colombo. At any rate, the applicant had worked in the company for approximately [number of] years (prior to March 2012) and the businessman (in [Town 3]) had been purchasing goods from the company for approximately 1 year. The applicant had delivered approximately 4 loads of [products] to the businessman in [Town 3] in that time. On two occasions, the cheque payments for the goods made by [Town 3] businessman had bounced. On the first occasion, the applicant had approached the businessman and the money had been re-paid. On the second occasion ([in] March 2012), the man had refused to pay the monies, even though he had received the goods. A verbal conflict had then occurred.

16. Given this claimed verbal conflict had caused serious problems for the applicant, when asked what was said, the applicant explained the debt was large ([number] lakhs) and the man did not have the money to pay for the goods in his account. When asked if a suggestion was made (for instance) that the money could be paid for by instalments, the applicant said no such suggestion was made. Though the applicant said that no threats had been made during this exchange, he did say that when asked for the money, the businessman had said “you’ll get it” and “try to recover” the money.

17. The applicant said the matter had not been resolved and he therefore returned to Colombo in his van. At the hearing, he said that around 22kms from [Town 3], when he was returning to his employers business premises in Colombo, another van pulled up beside him and plain clothed armed men forced him out of his vehicle. He said he thought they may have been from the CID “because their hair was very short and they were speaking Sinhalese.”  However, after discussion at hearing, it was apparent the applicant did not know where these men were from. The men asked him for the address of his employer and after he told them, “they scolded him for being a Tamil” they pointed their rifles at him. The men then left and the applicant continued on his journey to his employer’s business premises in Colombo.

18. When it was then put to the applicant that it may not appear plausible his subsequent problems arose due to the above verbal conflict, without apparently more being said, the applicant said (words to the effect) this was none-the-less true.

19. At hearing, the applicant said he then immediately returned to his employer’s business in Colombo and told him what had happened. It was decided the applicant was to stay away from the business for 2 weeks (though his normal work arrangements would also mean he remained away from the business premises in Colombo for some time). Two weeks after the incident, the applicant returned to his employers business in Colombo, and (by statutory declaration dated [in] October 2014[8]), he said the “CID” men came to his workplace searching for him.  The “CID boss told the [applicant’s] boss” they would kill him if they found him. One week later “they came again” and the applicant’s employer said they were the same armed men.  However, the applicant was “not there at the time”. At the Tribunal hearing, when asked on more than one occasion, the applicant confirmed the alleged CID men only attended his employer’s business address on one occasion.

    [8] Tribunal – folio 46.

20. At the hearing, and again on more than one occasion, the applicant conceded he then ceased work for his employer in Colombo (from late March 2012), and he then returned to live with his own family in [Town 2] until he departed Sri Lanka in mid-July 2012 (some 3 ½ months later). The applicant did not have any further problems in Sri Lanka after the March 2012 incident.

21. After discussing it at hearing, the Tribunal accepts the Tamil applicant had a dispute with a Sinhalese customer, that he was accosted on the road while returning to Colombo, that after advising his employer about the incident, the applicant remained away from work for approximately 2 weeks, and that on one occasion during that time, some unknown men visited the applicant’s employer’s business premises and made some threats about the applicant. The Tribunal also accepts the applicant then spent the next 3 ½ months unemployed while living at his own home, with his family, in [Town 2].

    Miscellaneous:

22. The applicant also lodged evidence that his sibling had recently passed away in Sri Lanka.[9] When asked at hearing he explained that his [sibling] had died of natural causes. The Tribunal accepts this is correct. However, I do not accept this assists the applicant’s case and I have not discussed this further.

    Summary of preliminary findings:

    ·     Based on the evidence on file (including a purported photo-copy of the face-page of the applicant’s Sri Lankan passport[10]) and after discussing the applicant’s claims, the Tribunal accepts he is a national of Sri Lanka as claimed. Accordingly, I accept that Sri Lanka is the applicant’s country of reference for the purposes of assessing refugee protection claims; and his receiving country for the purposes of assessing complementary protection claims.  

    ·     Based on the evidence presently before me, I am not satisfied the applicant has statutory effective protection in any safe third country (pursuant to subsections 36(3)-(5) of the Act).

    ·     The Tribunal accepts the applicant was detained by the SLA in or around 1983, kept for 2 weeks, and then released.

    ·     The Tribunal accepts the applicant (principally) lived and worked in [Country 1] between 1984 and 1991.

    ·     The Tribunal accepts the applicant returned to Sri Lanka in 1991; and that he married in 1996.

    ·     The Tribunal accepts the applicant’s [relative] was abducted and killed by unknown persons (suspected to be the SLA) in 1995. The Tribunal also accepts the applicant did not have any further problem for the next (almost) 17 years.

    ·     The Tribunal accepts the Tamil applicant had a dispute with a Sinhalese customer (from the south of Sri Lanka); that he was he was then accosted on the road while returning to Colombo, that he was threatened and released; that after advising his employer about the incident, the applicant remained away from work for approximately 2 weeks, and that on one occasion during that time, some unknown men visited the applicant’s employer’s business premises in Colombo and made some threats about the applicant.

    ·     The Tribunal also accepts the applicant then spent the next 3 ½ months unemployed while living at his own home, with his family, in [Town 2].  

    [9] Tribunal – from folio 77.

    [10] DIBP – folio 16.

    DOES THE APPLICANT HAVE A WELL-FOUNDED FEAR OF PERSECUTION FOR A REFUGEES CONVENTION REASON?

23. In order to satisfy the criteria in subsection s.36(2)(a) of the Act, an applicant must be determined inter alia to have a real chance of persecution for at least one of the Refugees Convention grounds.

    The 2012 incident:

24. As stated above, the Tribunal accepts the Tamil applicant had a dispute with a Sinhalese customer (from the south of Sri Lanka); that he was he was then accosted on the road while returning to Colombo, that he was threatened and released; that after advising his employer about the incident, the applicant remained away from work for approximately 2 weeks, and that on one occasion during that time, some unknown men visited the applicant’s employer’s business premises in Colombo and made some threats about the applicant. The Tribunal also accepts the applicant then spent the next 3 ½ months unemployed while living at his own home, with his family, in [Town 2].

25. The applicant had said the Sinhalese people he fears have significant political influence and he would be at risk wherever he resided in Sri Lanka. However, based on what was discussed at hearing, the applicant does not know anything about the Sinhalese businessman he had the verbal conflict with, or who that man may have contact with. Be that as it may, the Tribunal accepts that the businessman was able to organise the applicant to be accosted on his return to Colombo (immediately after the incident), and on one occasion threats were made regarding the applicant at the Colombo business premises (sometime in the 2 weeks following this verbal conflict). The applicant was uncertain who the men were who accosted and threatened him. He appeared to suggest they may be CID or paramilitary. The country information stated:

    2.35 Some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role supporting it in the north and east. While these groups have reportedly renounced paramilitary activities, DFAT is aware of reports that they continue to be active in Sri Lanka, including in criminal activity. While credible, these reports are difficult to verify.[11]

    [11] DFAT Country Report, Sri Lanka, 16 February 2015.

26. As stated above, the Tribunal accepts that the businessman from [Town 3] organised for the applicant to be stopped while returning to Colombo (immediately after the verbal conflict), and that shortly after that, threats were made against the applicant at his work premises. However first, if the applicant was of any serious interest at the time he was stopped on the road (immediately after the verbal conflict), I am satisfied he would have suffered more harm than simply verbal threats or a gun being pointed at him (though the Tribunal accepts this would have been very distressing). That he was released shortly after being stopped on the road, is one reason that has satisfied the Tribunal he is not of any ongoing adverse interest to anyone in Sri Lanka.

27. Second, though the Tribunal accepts one threat was made against the applicant at his Colombo workplace, he was then able to live without any problems for the next 3 ½ months, in his own home in [Town 2]. The country information stated:

    5.18. In practice, anyone arriving at a new locality will need to register with the local Grama Niladhari (Village Officer) for administrative purposes such as obtaining documents to confirm place of residence for school admission, employment, election registration and access to essential services such as water etc. In addition, when a citizen purchases land or property they must register with the local council for land/property tax purposes.[12]

    [12] DFAT Country Report, Sri Lanka, 16 February 2015.

28. The Tribunal is unsure whether the applicant was approached by members of the CID or paramilitary groups (with political influence). Based on the evidence before it, including that the applicant did not claim to have committed any crime in Sri Lanka and given the incident occurred in March 2012, the Tribunal has decided to accept that the applicant was not approached by the CID – but that he was approached by members of an unknown paramilitary group. Be that as it may, given the immediately above country information, the Tribunal believes the applicant could have been readily traced if his assailants had the political influence he claimed, or the capacity or the will to trace him, in the 3 ½ months he safely lived at his own home in [Town 2] (unharmed), if he was of any ongoing adverse interest to anyone in Sri Lanka.

29. Third, at the commencement of the hearing, the applicant explained that he telephoned his family in [Town 2] (his wife) around once per week. When asked what was discussed, he said principally, how each of them was, how his children’s studies were proceeding, and his “problems” (which the Tribunal subsequently understood related to his migration application in Australia). At no time did the applicant say that any family member was harmed, harassed or even questioned since he departed Sri Lanka (in July 2012).

30. When then asked why he could not simply seek employment from another employer in Colombo or an employer around [Town 2], the applicant said (words to the effect) he did not wish to cause problems for his employer in Colombo and if he returned to Sri Lanka, “they” would look for him. However, the Tribunal does not accept the applicant was of any ongoing adverse interest to anyone in Sri Lanka, at the time he departed unlawfully in July 2012.

31. For all the reasons set out above, the Tribunal is not satisfied the applicant has a real chance of suffering any harm for the 2012 incident, should he return to Sri Lanka.

    The applicant’s Tamil ethnicity:

32. The applicant feared he would be mistreated in Sri Lanka due to his Tamil ethnicity. The applicant also said the authorities are Sinhalese and corrupt and they persecute Tamil people or failed to intervene when Tamil people are persecuted.  The applicant said that Tamil people are targeted by the authorities and/or mistreated at the hands of the Sinhalese people throughout Sri Lanka. That said, by statutory declaration dated [in] October 2014,[13] the applicant confirmed he did not support nor was he “directly involved with” the LTTE. However, the applicant also said it was still unsafe for Tamils in Sri Lanka. The Tribunal put to him that some 6 ½ years after the cessation of the war, it may not appear that he would be harmed for reasons of his Tamil ethnicity or anything else (without more), but the applicant did not agree. The applicant said that Tamils are still being harmed in Sri Lanka. He then referred to one (presumably) Tamil person who was abducted and killed, but after some discussion, it appeared that incident occurred around 1991-1992. At any rate, the country information includes that:

    2.34 On 31 August 2011, the Government ended a state of emergency which had been in place almost constantly since 1971. Under the Emergency Regulations, security forces had broad powers of arrest and detention, including the ability to hold suspects for up to a year without charge. Several elements of the emergency regulations remain in force under the Prevention of Terrorism Act 1979 (PTA).[14]

    and:

    2.37 The security situation in the north and east has greatly improved since the end of the military conflict.  With the cessation of fighting, the humanitarian situation in these areas has also improved.  The end of the conflict has 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 has helped to reduce the cost of transport and of basic goods in northern Sri Lanka.[15]

    [13] Tribunal – folio 46.

    [14] DFAT Country Report, Sri Lanka, 16 February 2015.

    [15] DFAT Country Report, Sri Lanka, 16 February 2015.

1. Towards the end of the Tribunal hearing, the applicant’s migration agent referred to the “ongoing harassment of Tamils by paramilitary groups. As stated elsewhere, the country information stated:

   2.35 Some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role supporting it in the north and east. While these groups have reportedly renounced paramilitary activities, DFAT is aware of reports that they continue to be active in Sri Lanka, including in criminal activity. While credible, these reports are difficult to verify.[16]

   [16] DFAT Country Report, Sri Lanka, 16 February 2015.

2. However, it is also stated: 

   3.12 … the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[17]

   [17] DFAT Country Report, Sri Lanka, 16 February 2015.

3. At any rate, none of the country information I have seen has satisfied me that a Tamil male with the applicant’s profile (ie someone who for the last (almost) 25 years was not suspected of any LTTE engagement / who had never engaged with the LTTE / and whose family were never apparently suspected of engaging with the LTTE), had a real chance of coming to the adverse attention of the Sri Lankan authorities (or anyone else), for any of the accepted claims herein. I therefore do not accept the applicant has a real chance of suffering serious harm for this reason on return.

4. Next, based on the accepted claims and the country information in the sources cited herein, neither am I satisfied the applicant has a real chance of suffering serious harm, for reasons that include that Sinhalese persons mistreat Tamil persons, or that the authorities fail to protect Tamil persons, or that merely because a person is a Tamil person, they would have a real chance of being harmed by paramilitary groups.

5. Next, the migration agent referred to persons suspected of supporting the LTTE being seriously harmed by the SLA and paramilitary groups in Sri Lanka (including in 2011). At hearing, the agent referred to the US Department of State, Country Report, Sri Lanka, 2014. Amongst other things, that stated:

   a. Arbitrary or Unlawful Deprivation of Life

   …

   There were persistent reports of close ties between progovernment paramilitary groups such as the Eelam People’s Democratic Party (EPDP) and government security forces. Whereas during the war these groups served more of a military function, often working in coordination with security forces, in the postwar environment they increasingly took on the characteristics of criminal gangs as they sought to solidify their territory and revenue sources. In March a report entitled An Unfinished War: Torture and Sexual Violence in Sri Lanka, 2009-2014 by UN panel of experts member Yasmin Sooka, of the Bar Human Rights Committee of England and Wales, and the International Truth and Justice Project presented evidence from 40 Sri Lankans who fled to the United Kingdom since the end of the war, alleging that security forces tortured and sexually abused them. The report stated that EPDP and Karuna group members supported security force intelligence gathering that included the torture and physical and sexual abuse of Tamils accused of LTTE connections in the five years since the end of the war. The report asserted that EPDP members often brokered the release of torture victims between the government and family members in exchange for payment of money.

   There were persistent reports that the EPDP, led by Minister of Traditional Industries and Small Enterprise Development Douglas Devananda, engaged in intimidation, extortion, corruption, and violence against civilians in the Tamil-dominated northern district of Jaffna…[18]

   and:

   Nongovernmental Impact: Pro-government paramilitary groups and gangs affiliated with political parties inhibited freedom of expression, particularly in the north. Members of the EPDP were reportedly involved in harassment and intimidation of journalists in Jaffna. The EPDP increasingly used public protests outside of opposition news outlets as an intimidation tactic to promote self-censorship. Throughout the year EPDP protests in Jaffna focused on the Jaffna Thinakkural newspaper for its strong anti-EPDP stance.[19]

   [18] US Department of State, Country Report on Human Rights Practices, 2014, Sri Lanka.

   [19] US Department of State, Country Report on Human Rights Practices, 2014, Sri Lanka.

6. The Tribunal accepts that paramilitary groups still operate in Sri Lanka. The Tribunal accepts that some members from these groups may engage in criminal enterprises. However, for the reasons set out above, the Tribunal is not satisfied the applicant has a real chance of suffering any harm should he seek work in his home region in Sri Lanka (being [Town 2]) or with another employer in Colombo. That is because I am not satisfied the applicant has any kind of profile that would cause him to be of any ongoing adverse interest to anyone in Sri Lanka, arising from the 2012 incident or anything else.  

   Illegal departure:

7. The applicant feared he would be harmed in Sri Lanka for having departed unlawfully. When discussed at hearing, the applicant said (words to the effect) he was a refugee in the housing system in Sri Lanka. After some discussion, it appeared the applicant was saying that sometime around (possibly) 2003, he and his family were displaced within Sri Lanka and determined to be “refugees” by the Sri Lankan government. When asked why he thought this relevant to his case, the applicant said he should be allowed to remain in Australia on humanitarian grounds. Be that as it may, the Tribunal does not accept that being displaced in Sri Lanka, in or around 2003, and being then found to be a “refugee in the housing system in Sri Lanka” now gives rise to a real chance the applicant would suffer any harm in Sri Lanka.

8. Possibly more importantly, the country information stated:

   5.22 …  Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).

   5.23 Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat.

   …..

   5.27 Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.

   5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.[20]

   [20] DFAT Country Report, Sri Lanka, 16 February 2015.

9. The Tribunal accepts the applicant departed Sri Lanka unlawfully, and I accept he may be fined on return (for breaching departure laws), but I also understand that such fines may be paid in instalments.[21] DFAT also stated that for ‘returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity…[and] DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.’[22] Further country information stated:

   4.21 … there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment … Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that 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. Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.  It is too early to make an assessment as to whether this will change under the Sirisena government.

   …

   5.32 Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka.[23]

   [21] Parliament of the Democratic Socialist Republic of Sri Lanka n.d. [current],‘Code of Criminal Procedure. An Act to Regulate the Procedure of the Criminal Courts’, (2 July 1979) [No.26 of 1981] (amended to Act No.7 of 2006), LawNet. Government of Sri Lanka [Ministry of Justice], Section 291 ‘Provisions as to sentences of fine’, accessed 19 January 2015, CISNET Library CISBE8E6BE640.

   [22] DFAT Country Report, Sri Lanka, 16 February 2015, at [5.26].

   [23] DFAT Country Report, Sri Lanka, 16 February 2015. 

10. The Tribunal has discussed the monitoring of persons returned to Sri Lanka, elsewhere. Further, there is no evidence the applicant committed any serious crime in Sri Lanka. That said, ordinarily the non-discriminatory application of generally applicable laws does not constitute persecution; and this may still be so whether or not the relevant law is repugnant to the values of Australian society.[24] However, whether something amounts to a law of general application is a finding of fact.[25] It is also settled law in Australia that where a law or policy results in discriminatory treatment of a person for a Refugees Convention reason, the question of whether the discriminatory treatment constitutes persecution ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[26]

    [24] See eg, Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA (1999) 57 ALD 613 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001).

    [25] The interpretation of a foreign law is a question of fact and that a finding based on an incorrect interpretation of such law would amount to an error of fact, rather than an error of law: Applicants in V 722 of 2000 v MIMA [2002] FCA 1059 (Ryan J, 18 September 2002) at [32].

    [26] Applicant A v MIEA (1997) 190 CLR 225, at 258 per McHugh J; Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [45].

11. The country information considered (in the sources cited herein) does not indicate that prosecution for breach of the departure laws in Sri Lanka would, without more, result in the discriminatory treatment of a person for a Refugees Convention reason. The Tribunal is aware that the intent of a law, selective enforcement of a law, selective application of a law, increased penalties for the breach of a law (for a Refugees Convention reason), where a law is used to pressure family members or others, such matters, amongst others, require careful consideration on the part of a decision maker. However, I am not satisfied that an essential and significant reason for any prosecution of the present applicant for having breached Sri Lanka’s departure laws, is for a Refugees Convention. That is because I am not satisfied he has any profile that would bring him to the adverse attention of the authorities on return (other than being fined for having departed unlawfully). Further country information stated:

    Detention

    4.22 With the exception of those in post-conflict rehabilitation (who are overwhelmingly ethnic Tamil), the prison population in Sri Lanka is broadly representative of the country’s overall ethnic and religious composition. In general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions.[27]

    [27] DFAT Country Report, Sri Lanka, 16 February 2015. 

12. The country information also stated:

    [DFAT] Post's experience with returnees from Australia is that persons are arrested by the Sri Lanka Police Service Criminal Investigation Department (CID) after being processed back into Sri Lanka by the Department of Immigration and Emigration. They are held in police custody at the CID Airport Office throughout the investigation period, which can last up to 24 hours under relevant legislation … They are then produced before a magistrate and the Magistrate's Court will determine whether the person is to be released on bail, to appear before the court at a later date, or is remanded into custody.

    …

    We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as a guarantor. There is no payment required for bail.

    However, we note that the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender. [28]

    and:

    3.61 Sri Lanka’s Courts are located across the country and Tamil-speaking judges are assigned to courts in majority Tamil-speaking areas. Consistent with Sri Lanka’s Constitution, a person is presumed innocent until proven guilty and the onus of proof is on the prosecution (except for offences under the Prevention of Terrorism Act where the onus is on the person to prove their innocence). Where the law dictates, judges can use their discretion in determining a sentence considering the facts of the case (for example, if the person is a multiple offender).[29]

    [28] "RRT Country Information Request - LKA41452 - Request for clarification", Australia: Department of Foreign Affairs and Trade (DFAT), 01 March 2013, CX306710.

    [29] DFAT Country Information Report, Sri Lanka, 31 July 2013, at [3.61].

13. The Tribunal also understands that (former) President Rajapaksa had “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In addition, the government has also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[30] Though still too early to tell with certainty, it does not appear this will change under the Sirisena government.

    [30] UK Foreign and Commonwealth Office 2011, Human Rights and Democracy: The 2010 Foreign and Commonwealth Office Report – Sri Lanka, 31 March, a,0.html, accessed 7 April 2011; and US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1.

14. At any rate, the evidence in the sources cited herein, indicate the Sri Lankan prison population is broadly representative of the country’s overall ethnic and religious composition. It is also the case that conditions in Sri Lankan prisons are poor. However, based on the country information and accepted facts, the Tribunal is not satisfied there is a real chance the present applicant would be subject to a custodial sentence in Sri Lanka (including for having exited unlawfully). The Tribunal is not satisfied (for instance) the applicant falls within any of the material risk profiles (including those provided by UNHCR [31] - discussed elsewhere) and is not satisfied his situation would be exacerbated on return for reason of any of the accepted claims. However, and though I am sufficiently satisfied of my immediately above finding, even if he was subject to a brief period in detention (in order to investigate his claimed identity), given the Tribunal’s satisfaction about his lack of any material profile, I am not satisfied the present applicant would be detained (for questioning) beyond a few hours (while his identity was being established). I am satisfied the applicant, like most persons, would also be granted bail on personal recognisance immediately by the magistrate.

    [31] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012; Risk Profiles.

15. The Tribunal therefore does not accept the applicant has a real chance of being subject to serious harm for any reason discussed above, should he return to Sri Lanka.

    Offshore Tamil diaspora:

16. By statutory declaration dated [in] October 2014,[32] the applicant confirmed he did not support nor was he “directly involved with” the LTTE.  Neither was it claimed that any family member was involved with the LTTE. However, in his migration agent submission of 13 October 2014,[33] it was claimed the applicant feared harm for reason of an imputed political opinion as someone suspected of supporting the LTTE. It was claimed that he may be suspected of supporting the LTTE because of his Tamil ethnicity. At hearing, and when asked, the now [age] year old applicant said he works in Australia (at a [business] in [a town]). He is not a member of a club, organisation or group and he does not do more than work. The country information stated:

    3.4 Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of those for whom there is an extant court order, arrest warrant or order to impound their Sri Lankan passport while ‘watch’ lists include names of those for whom Sri Lankan security services consider to be of interest, including for separatist or criminal activities. Those on a watch list are not reasonably likely to be detained, including on arrival at the airport, but are likely to be monitored.

    3.5 In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area. For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil Internally Displaced People (IDPs) who had returned to their homes in the north and east had been registered by the military and 71 per cent had been visited by the military or the police Criminal Investigation Department (CID) for interviews. Sri Lankan authorities have also increased their security presence in the north and east from time to time. For example, in March 2014, a number of check-points were established due to an alleged resurgence of LTTE activity. DFAT is aware of credible reports of people being stopped, detained and questioned by security forces at the time.[34]

    [32] Tribunal – folio 46.

    [33] Tribunal – from folio 67.

    [34] DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014

1. When asked at hearing, the applicant said he cannot return to Sri Lanka. However, the applicant did not say he engaged in anything in Australia that may cause him problems on return. Based on the accepted claims and the country information considered, I am not satisfied there is a real chance that anything the applicant had done in Australia would cause him to be persecuted in Sri Lanka.

2. The Tribunal therefore does not accept the applicant has a real chance of being subject to serious harm for any reason discussed above, should he return to Sri Lanka.

   Seeking asylum in a western country:

3. The applicant feared he would be persecuted in Sri Lanka for having sought asylum in a western country and/or being returned to Sri Lanka as a failed asylum seeker.  By statutory declaration dated [in] October 2014,[35] the applicant also said that as he had left Sri Lanka and applied for asylum abroad, he would be threatened by the authorities on return. He said “they will search for [him].” In his migration agent submission of 13 October 2014,[36] it was claimed the applicant feared harm as a member of a particular social group being “failed asylum seekers from the West.”  The migration agent submission of 13 October 2014,[37] also noted that recent country information supported the applicant’s fear. When this was discussed at hearing, the applicant said he did not wish to return to Sri Lanka. He wished to live a peaceful life in Australia. He said Australia was a good country.

   [35] Tribunal – folio 46.

   [36] Tribunal – from folio 67.

   [37] Tribunal – from folio 67.

4. That said, the most recently identified UNHCR risk profiles include:

   1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

   2) Former LTTE combatants or “cadres”;

   3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

   4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

   6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.[38]

   [38] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: 25 February 2015].

5. The Tribunal understands the above risk profiles are not exhaustive. However, based on the accepted claims, the Tribunal is not satisfied the applicant falls within any of the above risk profiles. Regarding, the claim of failed asylum seeker, the country information stated:

   Torture or mistreatment of returnees

   4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.

   and as stated elsewhere:  

   4.21 … there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment … Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that 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. Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.  It is too early to make an assessment as to whether this will change under the Sirisena government.[39]

   [39] DFAT Country Report, Sri Lanka, 16 February 2015.

6. A Freedom from Torture up-dated submission to the Human Rights Committee for the 5^th periodic review of Sri Lanka in October 2014 document[40] refers to individual cases of inter alia failed asylum seekers being seriously harmed on return to Sri Lanka. A fairly recent Asylum Research Consultancy paper,[41] on the treatment of returnees to Sri Lanka also documents cases of inter alia failed asylum seekers who are seriously harmed on return to Sri Lanka. However, the examples provided in the above papers (of persons who were harmed), appear to focus on persons with a political or other profile, which is substantially different to that of the present applicant. At any rate, the evidence in the above two documents has not satisfied me that all failed asylum seekers returned to Sri Lanka would have a real chance of being persecuted on return.

   [40] Freedom From Torture, "Freedom from Torture up-dated submission to the Human Rights Committee for the 5th periodic review of Sri Lanka in October 2014", Freedom From Torture, 01 October 2014, CIS2F827D91322.

   [41] UNHCR Refworld, Asylum Research Consultancy (ARC), Sri Lanka: 1. Information on Tamils who have returned (voluntarily or forced) to Sri Lanka since February 2014 and who were subjected to detention and/or torture and/or ill-treatment; (2) Information on the working methods of the Sri Lankan authority in 'screening' Tamil returnees, particularly since February 2014; (3) Information on activities of Sri Lankan Embassies abroad to monitor the behaviour/conduct of Sri Lankans abroad, particularly since February 2014; (4) Any information on recent arrest/detention/ ill-treatment/ torture of Tamils within Sri Lanka, and on what grounds particularly since February 2014, 19 August 2014, available at: >

   Regarding monitoring after return to Sri Lanka, the IRB reported that “according to UNHCR, there is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned”.[42] However, other country information stated:

   8.2 In February 2012 the Inter Governmental Consultation (IGC) on Migration, Asylum and Refugees carried out a survey on Sri Lankan asylum applications and returns amongst its participating members on behalf of the UK. Members were asked Q9 “Are you aware of any reports or allegations that voluntary or forced returnees have faced difficulties or been mistreated on return to Sri Lanka? If so, what was the nature of these difficulties or (alleged) mistreatment?

   8.3 [Though Australia responded] …  Of 12 other asylum intake countries, eight were not aware of any ill treatment of returnees, one country had not undertaken returns to Sri Lanka recently due to low numbers; two do not disclose information and two referred to Danish and Canadian fact finding missions.[43]

   [42] Research Directorate, "Treatment of Tamil returnees to Sri Lanka", Immigration and Refugee Board of Canada, 01 February 2013, CIS28614.

   [43] UK Home Office 2012, Country Policy Bulletin - Sri Lanka, October – para [3.1.2] - accessed 30 October 2012.

7. The Tribunal has seen no more recent country information that materially contradicts the immediately above IGC report. Reports did indicate that the detention/ill-treatment of failed asylum seekers may occur in the weeks, or years, following return. However, I am satisfied that in such cases, the link between being a failed asylum seeker and the harm, is significantly weakened.[44] Possibly more importantly, reports indicated the main focus of the Sri Lankan authorities on return included whether the person is suspected of having a previous or present record (including as a separatist supporter); whether they have escaped custody; ‘illegal departure from Sri Lanka…[though] the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.’[45]

   [44] UK Home Office 2012, Country Policy Bulletin - Sri Lanka, October – para [3.2.3]. - accessed 30 October 2012.

   [45] Andrea McMahon for the Treasury Solicitor, "Enforced Returns to Sri Lanka by Charter Flight on Wednesday 19 September 2012: 15.30h.", Treasury Solicitor's Department (UK), 01 September 2012, CIS27392.

8. The Tribunal has discussed the applicant’s illegal departure from Sri Lanka, elsewhere. However, the main focus of the Sri Lankan authorities on return appears to be whether a person is suspected of being an ongoing threat to the Sri Lankan regime.[46] Given the Tribunal’s satisfaction of the applicant’s lack of any material profile, I am not satisfied he has a real chance of being suspected of being an ongoing threat. Neither am I satisfied his political or other convictions, how-so-ever described, would cause him to be (or to be perceived to be), a threat. Based on the evidence before me, I am not satisfied the present applicant has a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker, in the reasonably foreseeable future.

   [46] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, p.6 < , accessed 9 May 2012.

9. The Tribunal therefore does not accept the applicant has a real chance of being subject to serious harm for any reason discussed above, should he return to Sri Lanka.

10. Finally, even considering those of the applicant’s claims that I have accepted cumulatively, for the reasons stated herein, I do not accept he has a well-founded fear of persecution for a Refugees Convention reason, in Sri Lanka. Neither am I satisfied there is any other issue, squarely raised by the evidence if not articulated, that would give rise to a real chance the applicant would be subject to serious harm in Sri Lanka, for any reason.

11. For the reasons given above, the Tribunal is not satisfied 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) of the Act.

    ARE THERE 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 THEY WILL SUFFER SIGNIFICANT HARM?

12. If an applicant is not found to be a person in respect of whom Australia has protection obligations under the 1951 Refugees Convention, they may nonetheless meet the criterion for a Protection visa in subsection 36(2)(aa) of the Migration Act. That subsection provides that the ‘decision maker’ must be satisfied that Australia has protection obligations to a non-citizen in Australia because the ‘decision maker’ has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen (the applicant) will suffer significant harm. Subsection 36(2A) of the Migration Act defines significant harm as:

    (a)the non-citizen will be arbitrarily deprived of his or her life; or

    (b)the death penalty will be carried out on the non-citizen; or

    (c)the non-citizen will be subjected to torture; or

    (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)the non-citizen will be subjected to degrading treatment or punishment.

13. Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part):

    In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm… were he to return to [the receiving country]. [246]

14. Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in Sri Lanka. That said, with respect to prison conditions, the UK Home Office reported:

    3.16.10 Conclusion: Conditions in prisons and detention centres remain poor. Taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of ill treatment, including torture, are likely to reach the Article 3 threshold and a grant of humanitarian protection may be appropriate…[47]

    [47] UK Home Office, Operational guidance note: Sri Lanka, July 2013; see also Country of origin information report: Sri Lanka, 7 March 2012.

15. However, Article 3 of European Convention on Human Rights, does not impose the qualifications for the grant of protection that are contained in both the Refugees Convention (the Refugees Convention nexus) and the material complementary protection provisions of the Migration Act (including the need to determine whether the material harm is intentionally inflicted on a person). And, based on the country information considered, the harm to which prisoners may be subject, appears to be entirely random. Furthermore, mere negligence or lack of resources (which appeared to be the cause of the poor prison conditions) does not suffice to give rise to cruel or inhuman treatment or punishment, or torture, under Australian law; given there is no identifiable intention by the Sri Lankan government to cause such harm.[48] Other country information stated:

    Deaths in custody

    4.11 Although there are no reliable figures available, some criminal suspects have died while in custody. In some instances, police argued the deaths were in self-defence. Deaths in custody are generally unrelated and isolated in nature. Disciplinary and legal actions related to such incidents have been recorded.[49]

    [48] See SZTAL v MIBP [2015] FCCA 64, 24 February 2015, Driver J, at [57].

    [49] DFAT Country Report, Sri Lanka, 16 February 2015.

16. The evidence in the sources cited herein, indicate the Sri Lankan prison population is broadly representative of the country’s overall ethnic and religious composition. Be that as it may, and for the reasons set out above, the Tribunal is not satisfied there is a real chance (real risk), the applicant would be subject to a custodial sentence in Sri Lanka (including for having exited unlawfully). Given his (lack of any material) profile, I am not satisfied the present applicant would be detained (for questioning) beyond a few hours (while his identity was being established and he was charged with unlawful departure). I am also satisfied the applicant would be granted bail on personal recognisance immediately by a magistrate.

17. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Sri Lanka.

18. Next, based on the country information and accepted facts, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). If he is subject to harm on return, I am also not satisfied there is a real risk it would be more than some possible harassment[50] - and none of the country information in the sources cited herein, has satisfied me the ‘possible harassment’ that a person with the applicant’s lack of profile may suffer, would constitute significant harm. Next, and for the same reasons, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment. Further, none of the country information in the sources cited herein, have satisfied me the applicant has a real risk of suffering arbitrary deprivation of life in a Sri Lanka.

    [50] Andrea McMahon for the Treasury Solicitor, "Enforced Returns to Sri Lanka by Charter Flight on Wednesday 19 September 2012: 15.30h.", Treasury Solicitor's Department (UK), 01 September 2012, CIS27392.

19. Finally, even considering those of the applicant’s claims that I have accepted cumulatively, for the reasons stated herein, I do not accept he has a real risk of suffering significant harm in Sri Lanka. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real risk of suffering significant harm in Sri Lanka.

20. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he will suffer significant harm if returned to Sri Lanka.

    Conclusion:

21. Having previously concluded the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal considered the alternative criterion in s.36(2)(aa). For the reasons stated above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Mr S Norman
    Member