1400849 (Refugee)

[2016] AATA 4887

1400849 (Refugee) [2016] AATA 4887 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1400849

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rea Hearn Mackinnon

DATE:18 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2016 at 11:39am

CATCHWORDS

Refugee – Protection Visa – Sri Lanka – Political opinion – Association with Liberation Tigers of Tamil Eelam – Race – Tamil – Particular social group – Victim of compulsory land acquisition – Particular social group – Failed asylum seeker – Claims not amounting to serious harm – Witness credibility – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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 2013 and the delegate refused to grant the visa [in] January 2014.

3. The applicant appeared before the Tribunal on 1 July 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. 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 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.

10. The issue in this case is whether the applicant will be harmed by the authorities in Sri Lanka because of his Tamil race, his status as a young Tamil male, as an associate of the Liberation Tigers of Tamil Eelam (LTTE), as an opponent of the government because he registered a complaint about a planned Army takeover of his land or because he left Sri Lanka illegally; or whether he will be harmed by paramilitary groups because of an association with the LTTE.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

11. The applicant has provided a copy of his national identity card and birth certificate. The Tribunal is satisfied that he is a national of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality and receiving country.

    Background

12. The applicant was born on [birth date] on [a particular village] in Jaffna district. He is of Tamil ethnicity and Roman Catholic religion. He and his family moved to [Town 1] in 1990 after the Army occupied their home. His father, who had been [a particular occupation], died in [2006]. His mother and [siblings] remain in [Town 1]. One [sibling] works as [occupation] for an [organisation]. The applicant does not know if this is an international organisation or an NGO. His other [sibling] is training to be [a particular occupation]. The applicant completed [school] in [a particular year], worked as [Occupation 1] from 2004 to 2005 and for [Business 1] in 2006. He studied in [Country 1] from 2007 to 2010 then worked again for [Business 1] from 2011 to 2012. He is not married. He left Sri Lanka in July 2012.

    Claims

    Association with the LTTE

    -Interrogation in 2006

13. The applicant claims that he was questioned and tortured after a bomb was thrown at an Army shelter in [Town 1] in [2006] injuring one soldier which was close to [Business 1] where he was working at the time. The Army rounded up people in the vicinity and entered his workplace. He told the delegate that the Army took him and other colleagues away, detained him overnight and beat him throughout the night.  He told the Tribunal that the Army interrogated him and [a number of] colleagues inside the workplace for [a number of] hours. When the Tribunal noted this inconsistency, the applicant said that he previously said he was arrested and kept in the workplace and does not know how this evidence was changed.

14. The applicant claims that, during this interrogation, the Army blindfolded him and [a number] of his colleagues, put them into a separate room and tortured them. He claims that the Army suspected him and his [colleagues] of bringing in the bomb because they were permanent employees whilst the others were part-time (although he has also said he was working casually; and also because other people (he doesn’t know who although the Army mentioned their names) told the Army they were Tigers. He claims that the Army tortured him and his [colleagues] by [using a particular torture method]. He became dizzy and later had an ulcer. He has previously stated that he was assaulted leaving a scar on [a particular part of his body].

15. The Tribunal accepts that the applicant and his colleagues may have been questioned by the Army in [2006] in the aftermath of an explosion near to their workplace. The Tribunal does not accept that he was detained overnight or in the workplace as he has given inconsistent evidence about this. The Tribunal does not accept that the applicant’s evidence on where he was detained and questioned was changed without his knowledge. The Tribunal accepts that the applicant may have been hit while being questioned and that being hit may amount to serious harm. The Tribunal does not accept that the applicant was interrogated and tortured over [a number of] hours in his [workplace] because, firstly the Tribunal is of the view that he would have specifically mentioned such treatment in his written statement and to the delegate if it had occurred and, secondly, the Tribunal does not believe that the Army would have or could have engaged in such torture in [Business 1] without the kind of equipment necessary to facilitate such torture.

16. The Tribunal notes that the applicant was released after being questioned indicating that the Army did not suspect him of being involved in the attack and finds that he was not suspected.

17. The applicant told the Tribunal that the Army orchestrated the bomb attack in order to question the applicant about his work as a secret agent for the LTTE (discussed below). When the Tribunal noted that the Army could have arrested him at any time if the Army was suspicion about him, the applicant stated that he is from a respected family so the Army could not just take him. The Tribunal considers it implausible and does not accept that the Army orchestrated a bomb attack on an Army facility in order to question the applicant about his LTTE involvement.

    -LTTE secret agent

18. The applicant told the Tribunal that, despite his previous evidence in his written statement and to the delegate that he had no connection to the LTTE, he was a secret agent for the LTTE. He told the Tribunal that he had not mentioned this previously because he was ashamed and because he didn’t think it was a big thing to tell.

19. The applicant stated that he became a secret agent in 2003 after he met an important LTTE intelligence person in [Business 1]. When the Tribunal noted that the applicant was still at school in 2003 and not working for [Business 1], he stated that he would visit the shop because the agent was his friend. He stated that he decided to help the LTTE because he had become angry with the way Tamils were suffering and being treated.

20. The applicant stated that, after he commenced working as [Occupation 1] in 2004 and travelling around the Jaffna district, he collect goods for the LTTE from one shop and delivered these to another. The LTTE told him where to go and when by calling him or going to [Business 1] or communicating with him via a [specific telephone]. He made deliveries irregularly, approximately once a month or when needed. He ceased this involvement after his father’s heart attack in [2006] and he went to [Country 1] in April 2007.

21. The applicant stated that he also used to gather intelligence for the LTTE and reported suspicious people to his supervisor. When asked what made a person appear suspicious, he stated that, if he went to a place 25 times and saw a person just standing there, not doing anything, he would tell the LTTE about the person and the LTTE would then take whatever action was required. Also, when he went to the shops in the Army camps he looked for certain signs or [symbols] and reported these to the LTTE. 

22. The Tribunal does not accept that the applicant was a secret agent for the LTTE. As discussed with the applicant at the hearing, the Tribunal is of the view that the applicant would have set out this claimed involvement in his written statement and told the delegate if it was true, particularly as he provided a long written statement about why he will be imputed to have been involved with the LTTE. The Tribunal accepts that the applicant may have provided some support or assistance to the LTTE between 2003 and 2006 whilst he was working as [Occupation 1], including making deliveries. The ceasefire was in place during this period, the LTTE was able to operate openly and most people in the north had a level of involvement with the LTTE during this time. The Tribunal does not accept that the applicant collected intelligence for the LTTE during this period. His evidence above regarding the type of evidence he collected is not plausible. The Tribunal notes that the applicant ceased his involvement with the LTTE in 2006 which coincides with when the ceasefire broke down. The Tribunal does not accept that the Army interrogated the applicant in 2006 after the bomb blast because they suspected him of being a secret agent for the LTTE.

    -Army harassment in 2006

23. The applicant claims that whenever he passed Army checkpoints after the bomb blast, the Army and Intelligence would call out and accuse him of being LTTE. He claims that the Army went to his house and told him to report at the Army camp [a number of] times after the bomb blast. On each occasion, he went to the camp with his father (who died in [2006]) but his father was told to wait outside. He saw different soldiers. They asked him if he was involved with the bomb blast and called him a Tiger. They verbally abused him and hit him with their hands or whatever weapons they had. They questioned him each time for about half an hour but he had to wait for a long time beforehand. He claims that the soldiers knew he wasn’t really connected to the bomb blast but they wanted to find out if he had any connection to the LTTE and it wasn’t easy for them to make inquiries because of his respectable family background.

24. The Tribunal accepts that the applicant may have had to report to the Army camp on [a number of] occasions during 2006. The Tribunal does not accept that the applicant was suspected of being involved with the bomb blast because the Tribunal does not accept that the applicant would have been released if he was so suspected. The Tribunal notes that fighting between the LTTE and the government forces resumed in 2006 and that attacks began to escalate and accepts that the Army may have questioned young Tamil men such as the applicant about their involvement with the LTTE. The fact that the applicant was released after 30 minutes of questioning on each occasion indicates to the Tribunal that he was not suspected of LTTE involvement.

    -Travel to [Country 1]

25. The applicant confirmed that he departed Sri Lanka in April 2007 on his own passport, returned in April 2010, departed again in April 2010 and returned in August 2010 without being questioned by the authorities at the airport or experiencing any other problems.

26. The applicant completed a [course] at [a particular university] in [a particular city] in [Country 1].

    -Abduction of cousin

27. The applicant claims that his cousin [Mr A] [suffered a serious injury] in a bomb explosion in 2009 in the last two months of the conflict and was in hospital for [a number of] months. [Mr A] lived in Jaffna district, [a number of] kilometres away from the applicant’s home. [Mr A] had been staying at the applicant’s home for [a number of] weeks when, in [2010], [a number of] men who did not identify themselves but who may have been Army or Intelligence burst into the home, grabbed [Mr A] and took him away. More men were outside. The applicant told the Tribunal that, to his knowledge, [Mr A] had no connection to the LTTE. He is aware that the Army had previously questioned [Mr A] in the hospital.

28. The applicant claims that his family has had no contact with [Mr A] since then and do not know his whereabouts. He claims that the family went to the police station and the Army camp but both agencies refused to take a complaint that [Mr A] was missing. When asked if [Mr A]’s parents went to the International Committee of the Red Cross or to the Human Right’s Commission, the applicant said that he thinks it is most likely that they complained but there has been friction because [Mr A] was abducted from the applicant’s home and [Mr A]’s family blame the applicant’s family and they no longer speak to each other. The Tribunal queried why the authorities would take [Mr A] [a significant amount of time] after the end of the conflict when he had no association with the LTTE and had been questioned in hospital in 2009 and not detained then indicating that he was not suspected of involvement with the LTTE at that time.

29. The Tribunal accepts that [Mr A] may have been injured in an explosion in 2009 and hospitalised for [a number of] months. The Tribunal accepts that the Army may have questioned [Mr A] when he was in hospital about his injury and whether he was involved with the LTTE. About 11,000 suspected LTTE operatives and supporters were detained at that time[1] and any association with the LTTE was reportedly grounds for arrest at that time.[2]   The Tribunal does not accept that the Army or intelligence abducted [Mr A] from the applicant’s home in 2012. There is no apparent reason why the authorities would have abducted [Mr A] in 2012 three years after the end of the conflict, when they had questioned him in 2009 and not suspected him of involvement with the LTTE then.

    [1] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

    [2] Department of Foreign Affairs and Trade, 2014, DFAT Thematic report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October

30. The applicant claims that he was called to the CID (the Criminal Intelligence Division of the police) office in [Town 1] [a number of] weeks after [Mr A] was abducted and questioned about [Mr A]’s background, how long he had lived in Vanni, how he had [suffered particular injuries] and whether he was a Tiger. He claims the CID beat him when he told them that [Mr A] was missing and said that [Mr A] must have been abducted because he was a Tiger. As the Tribunal does not accept that [Mr A] was abducted in 2012, it does not accept that the CID called the applicant in for questioning about [Mr A]’s background and circumstances.

31. In his written statement dated [in] December 2012, the applicant stated that he was threatened and harassed much more by the Army after [Mr A] was abducted. He stated that the Army called him to report many times, threatened him, shouted at him and sometimes severely beat him; and the Army wanted him to say that [Mr A] was a Tiger and that he (the applicant) supported the Tigers. The applicant told the Tribunal, however, that he had no other problems (after being called into the CID) before he travelled to [Country 1] in August 2011. In view of the findings above that [Mr A] was not abducted and the applicant was not questioned by the CID; and the applicant’s evidence that he had no other problems, the Tribunal does not accept that the Army threatened, harassed, beat or otherwise harmed the applicant in 2012 after [Mr A] was abducted.

    -Travel to [Country 1] 2011

32. The applicant travelled to [Country 1] in 2011 for work purposes. He told the Tribunal that, at the airport, intelligence officers took him to a separate room and questioned him for half an hour to an hour about where he lived and his background in a year by year account. In his written statement dated [in] December 2012, the applicant said that he was interrogated severely when he departed Sri Lanka but was not questioned at the airport on his return as his boss arranged for people to meet him and take him through without any problems.

33. The Tribunal does not accept that the applicant was questioned when he departed Sri Lanka in 2011 as, for the reasons set out above, the Tribunal does not accept that the applicant was of any interest to the authorities. Further, the applicant had previously travelled to [Country 1] to study without any problems and, in 2011, was travelling to [Country 1] for business.  There was nothing about the applicant’s past travel or his travel in 2011 that would have caused the authorities to question him as claimed.  

    -Search of house in 2011

1. In his written statement, the applicant said that after he returned home, a group of masked men went to his home, threatened him and searched his house. They looked at his papers but did not take his passport (his entry interview is incorrect on this point).

2. The applicant told the Tribunal that sometime after he returned home from [Country 1], [a number of] people went to his house and searched his room then left. His mother and grandmother were at home at the time but he was not. The people did not identify themselves but he believes they were from the CID and that they were looking for evidence to link him with the LTTE. When asked why they would seek to link him to the LTTE in 2011 when they hadn’t done so before, the applicant said that there are people pointing out suspects at the airport and they had his details and may have been suspicious and also [Mr A] had been linked to the LTTE.

3. The Tribunal does not accept that the CID searched the applicant’s home after he returned from [Country 1] in 2011 looking for information to link him to the LTTE. As stated above, the applicant had no involvement with the LTTE other than day to day involvement during the ceasefire common to most residents of the north during the ceasefire. The Tribunal does not accept that the CID suspected the applicant of any involvement with the LTTE in 2011.

   -Paramilitary groups

4. The applicant claims that people who previously worked with the applicant are now in the paramilitary groups and that these people have reported him in to the Army and will harm him because they are afraid that he will report them.

5. For the reasons set out above, the Tribunal does not accept that the applicant was a secret agent for the LTTE or gathered intelligence for the LTTE and finds that his involvement with the LTTE occurred only during the ceasefire when the LTTE was operating openly in the north and was no more than many other residents in the north at that time. The Tribunal therefore does not accept that the people in the paramilitary will report him to the Army or harm him. 

   -Land occupation by Army, complaint and protest in 2011

6. The applicant claims that a house and land owned by his father in [a particular location] was occupied by the Army in 1990 and is still within a high security zone and surrounded by barbed wire. The site was shelled or bombed during the war. His family has rented their home in [Town 1], since 1990 and do not own any other property. When asked if his family has applied for return of their property or for compensation, the applicant stated that they no longer have the deed for the property as it was burnt during the bombing. When asked if they have obtained a copy of the deed from the government, he stated that they couldn’t as they do not know the number of the deed. When asked if they could search for the deed by address, he stated that they tried but were told that the deed could not be located.

7. The applicant claims that the Army has acquired or intends to acquire ownership of his father’s property. He provided a copy of a news report dated [in] 2012 referring to an application by the Army to permanently acquire ownership of [private] land in [a particular location] which the Army had occupied as a high security zone for 20 years.

8. The applicant claims that, following the Army’s announcement that it intended to take over Tamil land, he and some other people went to [a particular public] office in [a town] [in] 2012 to file affidavits claiming that they owned property (in the restricted zone). The applicant said that he spent several hours in the office, mainly waiting, and spent half an hour with the officer who read, stamped and filed his affidavit. He does not have a copy of the affidavit. On his way home, [a distance] from the [office], [a number of] masked people who he believes were connected to the government, stopped his car and damaged it but other people came to help him. When asked why he would have been stopped by masked government people, the applicant said it was either because he had complained about the land or because of his LTTE connection. The Tribunal noted that many people in the north have been affected by land acquisition and that the Army does not need to attack people in order to take over their land.

9. The Tribunal noted that the Army has been offering compensation to persons whose property has been acquired.[3] The applicant said that nothing has happened as far as he knows. When asked if the land issue had been taken up with local Tamil politicians now that the Tamil National Alliance is in power in the north, the applicant stated that politicians are promising to get the land back in order to attract votes but they don’t intend to give it back and the Army intends to settle other people on the land. The Tribunal noted that the Army has recently closed a number of bases in the north and handed previously occupied properties back to the owners.[4]

   [3] ‘Sri Lanka army to reduce presence in northern Jaffna’, The Hindu, 22 May 2013

   [4] Ibid

10. The applicant claims that there was a protest against the confiscation of Tamil land in [a particular location in] 2012 however he was too afraid to attend. He claims that, during the protest, a young man waved a Tiger flag then disappeared and that, as a consequence, the authorities then threatened and persecuted young Tamil men such as the applicant. He told the Tribunal that men from the Army or CID went to his house again shortly after this protest. The men checked the house and secretly took his passport. When asked why they would take his passport, the applicant stated that it may have been to stop him fleeing the country. When the Tribunal queried why the authorities would take his passport and not arrest or question him if they suspected him of something, the applicant said that he believes someone dobbed him in and that the authorities were collecting information about him. He stated that he then made arrangements to leave Sri Lanka. Later in the hearing, he stated that the Army or CID may have taken his passport because it is evidence that he was not in Sri Lanka between 2007 and 2010. The applicant stated that, as he was not in Sri Lanka at the end of the conflict, he was not screened by the authorities at that time for LTTE involvement.

11. The Tribunal accepts that the applicant’s family may have a claim to property that has been inside the high security zone for 20 years. The Army is continuing to occupy land in the high security zones[5] although the new government is reducing the number of high security zones and releasing land to the public.[6] The Tribunal accepts that the applicant’s family may have lost the deed to the property and may therefore be unable to prove their ownership. The Tribunal accepts that the applicant, along with other people, may have filed an affidavit setting out his family’s ownership claim in [2012] after the Army announced that it wanted to acquire land permanently.

    [5] Jones, S, ‘Sri Lanka accused of waging ‘silent war’ as Tamil land appropriated by the Army’, The Guardian, 29 may 2015

    [6] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

12. The Tribunal accepts that the applicant may not be able to reclaim property within the high security zone if the Army wants to acquire it. The Tribunal also accepts that the applicant may not be entitled to compensation if he is unable to prove ownership of the property. The Tribunal is satisfied that there are procedures in place for the applicant to make his claim to the land, as evidenced by his filing of an affidavit with [a particular public office]. The Tribunal does not accept that loss of the land to the Army amounts to serious harm in the form of economic deprivation threatening his capacity to subsist or significant harm as the land has not been in the applicant’s possession for 20 years and he and his family have had no benefit from the property in this period. The Tribunal accepts that loss of the property may be unfair or unjust (should it occur) but does not accept that it amounts to serious harm or significant harm in the circumstances. 

13. The Tribunal does not accept that masked men associated with the government stopped the applicant and damaged his car when he left the [specified public office] because he had filed an affidavit. Land ownership, acquisition and compensation are widespread issues in the north and there is no reason why the government would subject the applicant to such treatment in relation to these issues. The Tribunal does not accept that persons associated with the government attacked the applicant as claimed because of an LTTE connection. For all of the reasons et out above, the Tribunal does not accept that the authorities suspected the applicant of LTTE involvement.

14. The Tribunal does not accept that the Army or the CID searched his house after a protest in [2012] which he did not attend because he is a young Tamil male. The UNHCR advised in 2012 that Tamil men from the north are no longer presumed to be in need of protection because of improvements in the security situation in Sri Lanka since the end of the conflict.[7] For the reasons set out above, the Tribunal does not accept that the authorities had any interest in the applicant that would cause them to search his house after an incident in which he had no involvement.  The Tribunal does not accept that the authorities secretly took his passport on this occasion to prevent him fleeing Sri Lanka or because it proves he was out of the country between 2007 and 2010. The Tribunal finds the claim that the CID secretly took his passport to be completely implausible.

    [7] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

15. The Tribunal accepts that the applicant was not in Sri Lanka between 2007 and 2010 but notes that he returned to Sri Lanka in 2010 without any problems and remained in Sri Lanka until 2012 without any problems. The Tribunal accepts that Tamils in the north have been screened and monitored for LTTE involvement since the end of the conflict. The Tribunal is of the view that the applicant would have been subject to questioning on return to Sri Lanka in 2010 or shortly afterwards if the authorities had any concerns about LTTE involvement and has found, for the  reasons et out above, that he was not of interest. The Tribunal notes that the applicant was in [Country 1] studying between 2007 and 2010 and does not accept that this activity would cause the authorities to suspect him of involvement with the LTTE whilst he was outside of Sri Lanka.

    -Questioning of mother since he left Sri Lanka

16. The applicant claims that, since he left Sri Lanka, men have questioned his mother about his whereabouts and how he left Sri Lanka without a passport and told his mother that he is in serious trouble. The Tribunal is aware that the authorities have questioned the families of people they suspect have left Sri Lanka illegally and accepts that the authorities may be aware that the applicant has departed illegally and may have questioned his mother. It is an offence under Sri Lankan law to depart Sri Lanka irregularly and the ramifications for returnees who departed illegally are discussed below.

    - Findings

17. For all of the reasons set out above, the Tribunal does not accept that the applicant has been imputed with an LTTE association and does not accept that he faces a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm if returned to Sri Lanka because of an imputed association with the LTTE.

    Tamil Race

18. The applicant told the Tribunal that there is a new form of ethnic cleansing occurring in Sri Lanka now. He stated that there are a lot of gangs comprising criminals and paramilitaries in Jaffna, murdering people with knives and machetes, and that the police and Army don’t care. He also stated that the authorities want to change the demography of the north and that Tamils are still treated badly.

19. The Tribunal discussed information with the applicant about the current situation in Sri Lanka The Tribunal noted that the security situation in Sri Lanka is much improved since 2009[8]  and discussed advice from the UNHCR in 2012 that Tamils from the north are no longer presumed to be in need of protection because of their race or location;[9] as well as recent advice from DFAT that monitoring and harassment of Tamils in the north has eased since the end of the conflict and that fewer Tamils are being detained under the PTA.[10]

    [8] UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka, 21 December

    [9] Ibid

    [10] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

20. Whilst there are reports which implicate former paramilitary groups in criminal activity in the north, the Department of Foreign Affairs and Trade (DFAT) has reported that it is unable to verify if paramilitary groups are actively involved in criminal activity.  DFAT has also reported that whilst crime rates are higher in the north and the west than other parts of Sri Lanka (except Colombo), the homicide rate has fallen sharply in recent years and other serious crimes such as assault have remained steady or increased slightly.[11]

    [11] Ibid

21. In 2012, the ICG reported on Sinhalisation in the north and noted that “[m]uch of it follows directly from the stationing of tens of thousands of Sinhala-speaking and largely Buddhist troops in the formerly all-Tamil north and the efforts the military has made to entrench its presence and political control” and that many Tamils in the north believe that Sinhalisation is a deliberate strategy to eliminate Tamil identity.[12] More recently, however, President Siresena has appointed a civilian governor in the north to strengthen civilian administration and reduce military involvement in civilian affairs; the Tamil National Alliance now holds the majority of seats in the Northern Provincial Council; and the Army has reduced its presence in the north by about 30%.[13]

    [12] International Crisis Group 2012, Sri Lanka’s North I: The Denial of Minority Rights, Crisis Group Asia Report N°219, 16 March

    [13] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

22. The Tribunal notes that the applicant has been able to complete his education and work in the north and that, apart from his family land which has been part of a high security zone for 20 years, has not suffered serious harm arising from his race. The Tribunal accepts that there is an increased Sinhalese presence in the north and that Tamils in the north are concerned about this process. However, the Tribunal considers that the country information set out above indicates an improved situation for Tamils in the north overall. The Tribunal also notes that there are processes in place for Tamils to seek compensation for land acquisitions and the crime rate in the north does not indicate that gangs or paramilitaries are murdering Tamils as a form of ethnic cleansing.

23. The Tribunal does not accept that the applicant faces a real chance of serious harm in Sri Lanka as a Tamil or as a Tamil from the north or as a young Tamil male from the north or because of Sinhalisation of the north or because of the crime rate now or in the reasonably foreseeable future or that he faces a real risk of significant harm if returned to Sri Lanka arising from his Tamil race or his age separately or combined.

    Returnees

24. When asked if he fears harm on return to Sri Lanka because he came to Australia and applied for asylum, the applicant said that was not his main problem. He stated that he may not be harmed at the airport but he would be killed later because of the ethnic cleansing of Tamils discussed above. For the reasons set out above, the Tribunal does not accept that the applicant will be killed because of ethnic cleansing of Tamils.

25. The applicant also stated that he may face danger because he will be questioned on return to Sri Lanka and his history will become known. The Tribunal accepts that the applicant will be questioned on return to Sri Lanka Advice from DFAT on the entry and exit procedures for returnees to Sri Lanka was discussed with the applicant.

26. This advice indicates that, upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE) (who check travel documents and identity information against the immigration database), the State Intelligence Service (SIS) (who check the returnee against intelligence databases) and Airport CID (who verify a person’s identity to then determine whether the person has any outstanding criminal matters). This process typically takes several hours. The police investigate returnees travelling on temporary travel documents, to confirm their identity. This often involves interviewing the returnee, contacting their claimed home suburb or town police, contacting their claimed neighbours and family and checking criminal and court records. DFAT has assessed that returnees are treated according to these standard procedures, regardless of their ethnicity and religion and that Tamil, Sinhalese and Muslim returnees are treated in the same way on arrival in Sri Lanka. DFAT has further assessed that detainees are not subject to mistreatment during their processing at the airport.[14]

    [14] Ibid

27. DFAT advised in 2012 that:

    R.2. Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

    We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or received any allegations of mistreatment from any of the Tamils Sri Lankans they have facilitated.

    We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report "Sri Lankan Tamils tortured on return from the UK" [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:

    "We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture"

    "On 16 August FCO and UKBA met with Human Rights Watch and Freedom from Torture to discuss their allegations. UKBA have written to them since and received no response" and are due to meet Freedom from Torture again in November”.

    We are also aware of a story on Tamil Net [CX299934] claiming a Tamil British national visiting Sri Lanka was detained by the CID in Colombo from 3 to 9 October and "allegedly tortured under suspicion of LTTE links". The article claims the person was released after a ransom was paid to CID. AFP at post has followed up on the claim with the Sri Lanka Police CID (including with the officer named in the story) who have categorically denied the allegation.[15]

    [15] CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012

1. DFAT also advised that it is aware of a small number of allegations of torture or mistreatment by returnees and that verifying these allegations is difficult because they have been made anonymously and to third parties. DFAT also noted that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of mistreatment.[16]

   [16] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

2. The UNHCR has advised that persons with certain suspected links to the LTTE may be at risk of harm on return to Sri Lanka.[17] For the reasons set out above, the Tribunal does not accept that the applicant will be imputed with any LTTE association. The information above does not indicate that Tamils returnees from Australia have been imputed with an LTTE association arising from their travel to Australia. The Tribunal places weight on the DFAT report set out above and is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures as outlined above by DFAT. The Tribunal does not accept that this questioning and procedure amounts to serious or significant harm. LandInfo also concluded in 2012 that there is nothing to indicate that returning Tamils are treated in any particular way or are at risk of violations.[18]

   [17] Persons who held senior position, former combatants, former supporters who provided shelter, transport or supplied goods, fundraisers and propaganda activists, family members of the above: UNHCR, 2012, UNHCR Eligibility Guidelines for Assessing Protection needs of Asylum Seekers from Sri Lanka, 21 December

   [18] LandInfo, 2012, Sri Lanka: Human rights and security issues concerning the Tamil population in Colombo and the Northern Province, 7 December

3. Having regard to the information above, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm at the airport or after he returns to his home.

   Illegal departure

4. The applicant departed Sri Lanka illegally which is an offence under the Immigrants and Emigrants Act 1945.  DFAT has advised that persons who departed Sri Lanka irregularly, by boat, are being charged under that Act. Information about this provision and the treatment of returnees who departed Sri Lanka illegally was discussed with the applicant.

5. Whilst the Act provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction[19] and the Sri Lankan Attorney-General’s Department, which is responsible for the conduct of prosecutions, has informed DFAT 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 have been fined as a deterrent towards joining boat ventures in the future.[20] 

   [19] Code of Criminal Procedure Act (No 15 of 1979), ss. 303, 306, See also Immigrants and Emigrants (Amendment) Act No 31 of 2006, s.2

   [20] DFAT, 2015, DFAT Country Report Sri Lanka, 16 February reiterated in DFAT, 2015, DFAT Country Report Sri Lanka, 18 December

6. DFAT has advised that, following arrest at the airport, returnees are taken before the Magistrates Court at the first opportunity but may be held in custody for a few hours or a few days at the Airport CID office or a prison. DFAT advised in its most recent report that persons who plead guilty when brought before the court are fined and released and that the fine can be paid in instalments.  Those who plead not guilty when brought before the court are granted bail on a personal surety or with a family member as guarantor. The amount of fine is discretionary.[21] DFAT has previously advised that the fines range from around 5,000 Sri Lankan Rupees to around 50,000 Sri Lankan Rupees.[22]

   [21] Ibid

   [22] Ibid

7. The advice from DFAT above indicates that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason.  The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is a law of general application and does not give rise to persecution under the Refugees Convention.

8. The Tribunal is satisfied that the applicant will be held in remand for a short period, between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The applicant’s mother, [and siblings] are present in Sri Lanka to guarantee his bail. The evidence before the Tribunal does not indicate that they would not guarantee his bail and the Tribunal is satisfied they would do so.

9. The Tribunal has considered whether the applicant faces a real chance of serious harm for a Convention reason whilst in custody for a short period of time pending bail. There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. In 2012, Freedom from Torture reported that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”.[23] For the reasons set out above, the Tribunal does not accept that the applicant will be perceived to have an association with the LTTE which would cause him to be targeted whilst in custody. The evidence before the Tribunal does not indicate that Tamil returnees who have been charged with illegal departure and remanded in custody have been tortured or suffered serious harm whilst on remand and the Tribunal does not accept that the applicant faces a real chance of serious harm whilst on remand.

   [23] Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September

10. The Tribunal has considered whether there is a real risk the applicant will suffer significant harm whilst in prison on remand for a short period of time.

11. Torture is defined in the Act an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person to obtain information or a confession, to punish, to intimidate or coerce, or for a discriminatory reason. As stated above, Tamil prisoners with an actual or perceived link to the LTTE may be at risk of torture in prison but the Tribunal has found for the reasons set out above that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been tortured whilst on remand.

12. In 2015, DFAT advised that, “in general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions”.[24] Other country reports also indicate that prison conditions in Sri Lanka do not meet international standards because of overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence.[25] The UK Home Office has noted that prison conditions in Sri Lanka are likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”[26] and the US Department of State, citing an assessment by a former UN Special Rapporteur on Torture, has also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”.[27]

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

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

    [26] UK Home Office 2012, Sri Lanka: Operational Guidance Note, April, Section 3.9.11

    [27] US Department of State 2011, Country Reports on Human Rights Practices in 2010 – Sri Lanka, 8 April, Section 1

13. Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.[28] Former President Rajapaksa “called for an overhaul of the penal code and for the lower courts to reduce prison congestion and expedite the hearing of cases”. In 2011, the Sri Lankan government also reportedly announced plans to construct, relocate and expand several prisons, working in partnership with the International Committee of the Red Cross.[29]

    [28] US Department of State 2012, Country Reports on Human Rights Practices in 2011 – Sri Lanka, 24 May, Section 1

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

14. The Tribunal accepts that prison conditions in Sri Lanka are poor and do not meet international standards. The applicant will be remanded for a short period of time, between one and several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman in nature or an act or omission which is intended to cause extreme humiliation which is unreasonable.

15. Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.  Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not give rise to significant harm under Australian law.

16. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds, for the reasons set out above, that there are not substantial grounds for believing there is a real risk the applicant will be arbitrarily deprived of his life whilst on remand and the death penalty does not arise on the facts.

17. The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm.  The country information above indicates that the penalty which will be imposed on the applicant is a fine. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

18. The fine likely to be imposed on the applicant is between 5,000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between about $51AUD and $511AUD. The applicant is a young man with past employment experience and the Tribunal is satisfied that he will be able to find employment and pay a fine on return to Sri Lanka. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm.

    Refugee Assessment

19. Having regard to all the circumstances and findings above, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future from the Army or the CID or other Sri Lankan authorities because of his race (as a Tamil or a Tamil from Jaffna in the north) or an imputed link with the LTTE (including suspicion of involvement with a bombing) or a person who opposes the confiscation of his land by the Army or because he applied for asylum in Australia or because he left Sri Lanka illegally. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Sri Lanka because of his race or imputed political opinion or as a member of a particular social group of returnees or failed asylum seekers or persons who left Sri Lanka illegally, separately or cumulatively.

    Complementary protection assessment

20. Having regard to all of the circumstances and findings above, the Tribunal also finds that there are not substantial grounds for believing there is a real risk the applicant will suffer significant harm arising from his race or an imputed link with the LTTE or his opposition to land confiscation by the Army, his status as a returnee or failed asylum seeker or person who may be charged with departing Sri Lanka illegally. The Tribunal finds that there are not 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 he will suffer significant harm. 

    Conclusion

21. 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).

22. 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).

23. 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).

24. DECISION

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

    Rea Hearn Mackinnon
    Member