1400639 (Refugee)

[2015] AATA 3670

1400639 (Refugee) [2015] AATA 3670 (6 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1400639

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:6 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 06 November 2015 at 3:56pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] December 2013.

3. The applicant appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

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

10. The applicant claims to be a citizen of  Sri Lanka who was born in Negombo in the Western Province of Sri [Lanka]. According to his protection visa application, he lived in [Village 1] from March 1977 to 1985, in Negombo from 1985 to 1993 and in [Village 1] from March 1993 to July 2012 (except for a two week period in 1997 when he was in a refugee camp and periods during 2010 and 2011 in Negombo). The applicant completed [years] education and is fluent in Sinhalese. He described his occupation before coming to Australia as fisherman. He worked as a trainee mechanic in Negombo from March 1990 to 1993, a fisherman in [Village 1] from February 1993 to 2001, a self-employed fisherman from 2001 to 2004, various jobs for a 6 month period between 2004 and June 2005 and self- employed fisherman from June 2005 to July 2012. The applicant departed Sri Lanka illegally. His father, mother, [sibling], wife and [children] are residing in Sri Lanka. He has a [sibling] living in [another country].

11. The applicant presented his claims in his protection visa application [in] December 2012 (folios 37 to 70 of the Department File [number]), a Departmental interview he attended [in] October 2013 (folio 120 of file [number]) and at his Tribunal hearing on 29 October 2015. The following is the statement made by the applicant attached to his protection visa application:

    Introduction

    1.I am a citizen of Sri Lanka. I do not have a right to citizenship or a right to reside in any other country.

    2.I am Singhalese Christian by ethnicity, religion and community background.

    3.I was born on [date] in Negombo, Sri Lanka. The country to which I fear returning

    4.I fear returning to Sri Lanka because of the risk of being persecuted there for reasons of political opinion.

    5.I was in [Village 1]. In 1985 the army came into our village because of LTTE problems. After that I went to Negombo and did my schooling. After my marriage I went back to [Village 1]. I was working there but my wife and kids were living in Negombo. I went back and forth between the two. Mostly I was in [Village 1], but I was in Negombo during the election campaigns of 2010 and 2011.

    6.In the 2004 tsunami I saved my wife and kids but lost everything else. My house was completely gone, my boat, my means of earning a livelihood, everything. I did small labour jobs to survive.

    7.After the tsunami I was allocated a boat and government support but all those things were not given to me, whoever had the political connections were able to get like two or three engines for themselves.

    8.The only help I got was from the opposition UNP — United National Party - so I decided to join them. This was about a year after the tsunami, more or less, I can't remember when.

    I used to help them in everything and take part in all activities. For example through Members of Parliament I was able to help poor people to get their nets. I used to put up election posters, help to organise meetings, tell people who got help from the UNP about it, and encourage them and others to come.

    9.In the 2010 parliamentary election I campaigned for the UNP. I was putting up posters in Negombo with two other guys from the party. All of a sudden a van stopped and men got out. They had knives and poles and attacked us. They broke two fingers on my left hand with a stick. On the other arm I was knifed; I got wounds there and still have the scars on both sides of my arm.

    10.During the attack they told us, don't work with this party, don't even get into politics; and then they just drove off and left us all three injured. I had to have two operations to stitch up my wounds and treat them and still have big scars there today.

    11.We were able to identify two or three of them; they were from [Mr A]’s group. He is the candidate for the Freedom Movement.

    12.From then until the next incident, nothing much happened. I was at [Village 1], and also I was working.

    13.I started being active in the UNP again in the lead-up to the 2011 municipal election, doing similar activities again, organising meetings, giving out cards around houses, encouraging people to vote.

    14.One day I came out of my home and there on a wall facing my house, was posted a big sign handwritten in Singhalese, saying "[applicant’ name], don't work in the elections, don't even take part in them. If you do, we'll kill you."

    15.I have children and a wife so of course we got scared. My wife left, taking the children and went to stay with my uncle. And I left home and I was hiding around in [Village 1] and also a nearby village called [name].

    16.I stayed in hiding until I learnt about the chance to come to Australia.

    17.My agent has shown me that the entry interview record says that I said that the last time I was threatened was December 2011. I don't think that's accurate. I'm not much educated and didn't take much notice of dates, no-one had explained the refugee system to me, and I gave an estimate. Since I have arrived I have contacted my family in Sri Lanka. The election was in October 2011 and the last threat was before the election.

    What I fear may happen to me, by who and why, if I return to that country

    18.If I go back to Sri Lanka I'm scared of being persecuted again.

    Why I think the authorities of that country cannot or will not protect me if I were to go back to that country

    19.I told the police that I got death threats but I never got an answer from them. Police wouldn't give us protection because they were controlled by the ruling party, which is the same as [Mr A]’s.

    Why I think relocation to another area in my country is not a reasonable option

    20.We don't have places in other areas and also we don't have a livelihood in other areas as well.

12. The delegate of the Minister for Immigration and Border Protection refused the applicant a protection visa [in] December 2013 and he applied to this Tribunal for review of that decision [in] January 2013 . Attached to the review application was a copy of the delegate’s decision.

13. 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.

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

15. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided several documents identifying his name and place of birth, including his national identity card and fishing licence. 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.  

16. The applicant claimed in the hearing that he was scared to return to Sri Lanka because when he was putting up posters for the UNP a group of people cut him and they will take revenge from him because he worked for the UNP.  When asked who he fears will harm him, the applicant stated [Mr B and Mr C]. He stated that they are still in power.

17. The Tribunal does not accept that the applicant was politically active in Sri Lanka.  The Tribunal found the applicant’s evidence regarding his support of the UNP and his participation in politics vague and inconsistent. The Tribunal notes in the hearing the applicant claimed that he had been interested in politics since he was [young]. When asked why he decided to support the UNP, he stated it was because they did not have a house to live in and the UNP gave them a house so that was why he wanted to support them. He explained that in the 1990’s the UNP gave land to people in the Negombo area who did not own land. He also claimed that his parents worked for the UNP. When asked if he was ever a member of the UNP, the applicant stated no, he never joined the party.  In contrast, the Tribunal notes the applicant claimed in his statement attached to his protection visa application, that it was after the 2004 tsunami that he supported the UNP because the only help he received was from the UNP so he decided to join them. He claimed this was about a year after the tsunami, more or less.

18. In regard to when he started working for the UNP, the applicant stated in the hearing that he could not remember the date he started working for the UNP but that he worked for the party during the 1990’s. The Tribunal asked the applicant what work he was doing for the UNP when he started working for them. He stated that he would go with a group of people to put up posters and banners for the elections. When asked if he did any other work, the applicant stated no. He confirmed he only worked for the UNP during elections and he only put up banners and posters. The applicant also confirmed that he participated in all elections during the 1990’s doing this particular work. However, the Tribunal notes that there is nothing in the applicant’s statement suggesting that he had worked for the UNP prior to a year after the tsunami in 2004, particularly during the 1990’s. Further, the Tribunal notes that the applicant claimed in his statement that he used to help the UNP in everything and take part in all activities, for example through Members of Parliament he was able to help poor people get their nets, he helped organise meetings and would tell people about the UNP, which is in stark contrast to his evidence in the hearing that he only put up banners and posters.  

19. The Tribunal has also taken into consideration the applicant’s evidence in the hearing that he cannot tell much about the policies of the UNP. The Tribunal finds it implausible that if the applicant had worked for the UNP since the 1990’s, as he claimed in the hearing, that the only thing the applicant can say about the policies of the UNP is that it helps the poor. The Tribunal has also taken into consideration the applicant’s evidence that the UNP was never in power during the period that he was allegedly working for the party.  When asked if there was any period in the 1990’s or 2000’s that the UNP was in government, the applicant stated that he thought they were in power in the 1990’s, maybe 1994, for about 20 years. As the Tribunal put to the applicant in the hearing, the UNP lost power in 1994,  and were again in power from 2001 to 2004. The Tribunal does not accept that if the applicant had actively supported the UNP by putting up posters and banners during all elections since the 1990’s that he would not be able to tell the Tribunal when the UNP had been in government.

20. Based on the inconsistencies and discrepancies in the applicant’s evidence regarding when he first started to support the UNP and the activities he engaged in, as well as the applicant’s limited knowledge of the parties policies or when it was in power during the years he allegedly actively supported the party, the Tribunal does not accept that the applicant supported the UNP as he claimed.

21. As the Tribunal does not accept that the applicant actively supported or worked for the UNP, the Tribunal does not accept that he was assaulted and injured whilst putting up posters when a group of people associated with [Mr C and/or Mr B] came in a van and beat him. The Tribunal also notes that the applicant provided inconsistent evidence regarding when this alleged incident occurred and in what circumstances. In the hearing, the applicant claimed that this incident took place in 2000 or 2001. When asked which election this incident occurred during, he stated it was a local government election.  The applicant claimed that he was with three or four other people putting up posters in Negombo town when six to seven people came in a van and beat them. He stated that these people brought clubs and bottles and they were beaten with them. The applicant’s evidence was that after this incident in 2000 or 2001 he did not engage in any politics and did not support the UNP.

22. However, as the Tribunal put to the applicant in the hearing, in his statement attached to his protection visa application he claimed that he was attacked while putting up posters in Negombo with two others, by people with knives and poles, in 2010, during the parliamentary election. As the Tribunal noted, there is a difference of about ten years between the applicant’s earlier evidence as to when this incident occurred, and his evidence in the hearing. While the Tribunal observed the applicant’s claim that he was not sure when this happened, the Tribunal notes it asked him several questions to establish if this event occurred more recently or a long time ago and the applicant consistently claimed it was in 2000 or 2001.

23. The Tribunal also notes that in the hearing, the applicant claimed he made a complaint to the police but they did not enquire. When asked what the complaint was, the applicant stated when he was in the hospital the police came and they got a statement from him. He confirmed that he made a complaint otherwise he would not have received any treatment.  Yet in the delegate’s decision, a copy of which was provided to the Tribunal, the applicant is recorded as stating that he had never actually made any report or complaint to the police about the particular incident when he was allegedly assaulted. 

24. The applicant stated that his fingers and hand were injured when they were cut with a knife and he needed surgery. He also claimed that he was unable to work after sustaining this injury. He stated he could not do a proper job but was doing some work for a friend, supervising in a factory which puts ice on fish. The applicant stated that he did this work for one and a half years but could not remember when. However, as the Tribunal put to the applicant in the hearing, according to his protection visa application his employment history included working as a trainee mechanic from March 1990 to 1993, a fisherman from February 1993 to 2001, a self-employed fisherman from  2001 to 2004, various jobs for 6 months from 2004 to 2005 and then from June 2005 to July 2012, working as a self-employed fisherman. The Tribunal notes that there was nothing in the applicant’s protection visa application to suggest he was working as a supervisor in a factory as he subsequently claimed in the hearing.

25. Given the significance difference in the applicant’s evidence regarding the timing of the incident when he was allegedly assaulted and injured, the type of election he was allegedly working for the UNP for when he was assaulted and what happened, the Tribunal is further satisfied that this incident did not occur.

26. The Tribunal notes that the applicant also referred in the hearing to a recent incident when he was cut but confirmed that the particular incident discussed above happened a long time ago. However, when the Tribunal asked him about the more recent event, the applicant stated that he told what had happened to him and the incident discussed above was the only problem he experienced. He confirmed nothing happened to him after this particular incident. In light of the applicant’s vague, confusing and somewhat contradictory evidence, the Tribunal does not accept that there was any other incident in which the applicant was injured. Further, the applicant confirmed in the hearing that he did not experience any other problems apart from the incident when he was cut and when a sign was put outside his house. As such, the Tribunal is satisfied there was no other incident that occurred more recently, where the applicant was cut or injured. 

1. The Tribunal also notes that despite the applicant claiming in the hearing that after this incident in 2000 or 2001 he did not engage in any further activities in support of the UNP, the applicant had claimed in his statement attached to his protection visa application that he had been active in the UNP again in the lead-up to the 2011 municipal election, which according to the delegate’s decision, he supported [name].  The Tribunal also notes that it was at this time, during this particular election, that the sign was put up facing his house stating that he should not work in the elections or they would kill him. Based on the Tribunal’s findings that the applicant did not actively support the UNP and the applicant’s contradictory evidence regarding when he allegedly worked for the party, the Tribunal does not accept that the applicant worked for the UNP during any elections and therefore it does not accept that any sign was placed outside his house threatening him if he actively supported the UNP.

2. The Tribunal has taken into consideration the letters submitted by the applicant from [names]. The Tribunal notes that the contents of these documents are not consistent with the applicant’s evidence. Firstly, it notes they both refer to the applicant participating in the Presidential election in 2010, which the applicant did not claim in either his statement attached to his protection visa application or during the hearing. Secondly, [name] states that the applicant was a full time political activist who had a keen interest in politics and organised house to house campaigns, public meetings and other propaganda work, which is not consistent with the applicant’s oral evidence in the hearing, as discussed above. In [name] letter he refers to the fact that the applicant had changed his residence on numerous occasion but his political rivals were able to trace him and continued to threaten him with death, which the applicant did not raise during the hearing. As such, the Tribunal places little weight on these documents.

3. As the Tribunal put to the applicant, although the delegate accepted that the applicant supported the UNP during the 2010 and 2011 elections and that he was assaulted while putting up posters in 2010, for the reasons discussed above, the Tribunal does not accept that the applicant ever actively supported the UNP and that he was assaulted at any time when he was putting up posters. It therefore does not accept that the applicant was ever hiding in [Village 1] or any nearby village as he claimed in his statement attached to his protection visa application. The Tribunal finds the applicant’s claims are not credible and as such, it does not accept that he faces a real chance of serious harm, now or in the reasonably foreseeable future, if he returns to Sri Lanka, from [Mr C and Mr B] or people associated with them or anyone else because of his alleged political opinion.

4. The Tribunal asked the applicant if there were any other reasons why he feared returning to Sri Lanka apart from those related to his alleged work with the UNP. The applicant stated no. When asked if he had any concerns related to the fact he departed Sri Lanka illegally, the applicant stated that he did not know if there would be problems.

5. The Tribunal has considered whether the applicant will face persecution as a result of his illegal departure from the country, if returned to Sri Lanka. The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport.

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

7. The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

8. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

9. The Tribunal also considered whether the applicant will face a real chance of serious harm based on his membership of a particular social group of failed asylum seekers. The Tribunal notes that this issue was not raised by the applicant but was recognised by the Tribunal as arising on the particular facts of the applicant’s case. When asked if he had any concerns that by seeking asylum in Australia, he may face problems or harm if he returns to Sri Lanka, the applicant stated that he thought he might have some problems to a certain extent. In response to the Tribunal’s question as to what sort of problems he may experience, the applicant stated that [Mr C]’s group might do something.

10. The Tribunal has considered the information from DFAT it put to the applicant in the hearing, which noted that significant numbers of Sri Lankans 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.  As the Tribunal put to the applicant in the hearing, various sources including DFAT, other foreign governments and UNHCR  regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile. While the Tribunal accepts that the applicant as a failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and as a Sinhalese man who has not claimed to have been suspected of having any association with the LTTE, the Tribunal finds that the applicant would be released without further interest and he would not face a real chance of persecution as a failed asylum seeker or returnee.

11. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by [Mr C and Mr B] or people associated with them or anyone else because of his alleged political opinion. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka or his membership of the particular social groups of “failed asylum seekers returning to Sri Lanka”. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

    Complementary protection obligations

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

13. 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.

14. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept that the applicant was involved in politics in Sri Lanka. It does not accept that he supported or worked for the UNP at any time in the past, including either in 2000 or 2001 or in 2010 and 2011. The Tribunal does not accept that the applicant was assaulted by opposition party members, particularly people associated with either [Mr C and Mr B], or that a threatening sign was placed outside his home warning him not to take part in elections. The Tribunal does not accept on the evidence before it that the applicant will be involved in politics in the future. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from either [Mr B and/or Mr C] or anyone acting on their behalf.

15. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the applicant may face would be for a short term, the Tribunal does not accept that this would constitute significant harm. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty.

16. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.

17. The Tribunal is also not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia. As discussed above, the Tribunal accepts that the applicant as a 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 and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, 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.

18. 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).

19. 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).

20. 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).

21. 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

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

    Sydelle Muling
    Member