1400975 (Refugee)

1400975 (Refugee) [2016] AATA 4873 (29 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1400975
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:George Haddad
DATE:29 June 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 June 2016 at 2:48pm
CATCHWORDS
Refugee – Protection visa – Sri Lanka – Ethnicity –Young Tamil – Political opinion – Imputed association with LTTE – Social group – Fishermen – Failed asylum seeker – Fear of attacks by ‘grease men’ – Credibility concerns
LEGISLATION
Migration Act 1958, s 5(1), 36, 65, 91R
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZSPT v MIBP [2014] FCA 1245
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] January 2014.
The applicant appeared before the Tribunal on 22 April 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.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The issues in the present case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons contained in the Refugee Convention; and if not, 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.
For the following reasons the Tribunal has concluded that the decision of the delegate should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Sri Lanka?
The applicant is [age] year old male and claims to be a Sri Lankan Citizen, Christian and Tamil ethnicity. He set out his claims for protection in a statutory declaration submitted with his protection visa application and was interviewed by a delegate of the Minister for Immigration in relation to his claims for protection [in] October 2013.
In assessing the applicant’s claims, I have had regard to the Department’s file relating to the protection visa application, the written submissions from the applicant’s representative and country information referred to in those submissions and that which I discussed during the hearing; including country reports from the Department of Foreign Affairs and Trade (DFAT) on Sri Lanka and the Procedures Advice Manual 3 (PAM 3) published by the minister’s Department. I have also considered the DFAT report on Sri Lanka of 18 December 2015.
Country of reference for assessment of claims
The Tribunal finds the applicant is a national of Sri Lanka. He has provided a copy of the primary decision record which states that the applicant provided the Department an untranslated copy of his Sri Lanka National ID card and a fishing licence issued in [a town] in March 2011. He claims to have been born in [a] village, Puttalam District, Western Province, Sri Lanka. There is no evidence to suggest that he is a national of any other country and he made no claim to be a national of any other country. The applicant participated in the hearing through a Tamil (Sri Lankan) interpreter. For these reasons the Tribunal accepts the applicant’s claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home town, in Puttalam District the place he resided prior to departing Sri Lanka (and where his family continues to reside), to be his home region.
Third country protection
There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in a safe third country for the purposes of s36(3) of the Act.
The applicant’s claims
The protection visa application
The applicant set out his claims in a statutory declaration which he provided with the protection visa application dated [in] October 2012. It states that it was translated into the Tamil language and may be summarised as follows:
He has never married and has no children. His mother and [sisters] continue to live in Sri Lanka. [Sentence deleted]. His father has remarried and the applicant has the responsibility to support his mother and unmarried sister.
He left Sri Lanka because he has been harassed because of his Tamil ethnicity.
He was harassed by the Sri Lankan Army (SLA) about a year before in relation to not having a fishing permit. He questioned why Sinhalese could fish without a permit but he needed to have a permit. He was pushed around and told not to question their authority. They were about to hit him but his mother persuaded them to let him go.
In August 2010 they had a problem with “grease men” who would attack and abduct women, they cut off their breasts and kill them. He was concerned about his mother and sisters being attacked and would stay up all night to protect them. He found it difficult to go to work as he did not want to leave them alone.
In 2006 his brother-in-law was abducted by a ‘white van’ he was detained for 4-5 days, beaten and tortured. The abductors asked for a ransom. The family eventually raised the ransom and secured his release. The applicant feared the same would happen to him as many other young Tamils suffered this fate.
He fears that if he were to return the army and associated paramilitary groups will harm or mistreat him. He would be accused of being a member or supporter of the LTTE and would be persecuted and harmed. The authorities would not protect him as they support groups such as the white van people and grease men. He would be abducted and killed on suspicion of connection with the LTTE.
He also fears returning because he left Sri Lanka illegally and has applied for protection.
He concludes that he cannot return because he would be harmed as:
A young Tamil
Suspected of LTTE connection
Claimed asylum against the Sri Lankan government
If he were to lose his life his mother and sister will be in grave danger without him.
The applicant’s representative provided a written submission dated [in] April 2015.
The submission states that the applicant claims persecution om the basis of:
a.His race as a Tamil
b.Imputed political opinion
c.Membership of a particular social group – a returnee from a western country/asylum seeker
The submission continues that the applicant is identifiable as Tamil on the basis of his appearance, language and name. It describes the racial conflict in Sri Lanka between the majority Sinhalese and the Tamils. The applicant claims that he was unable to obtain a fishing permit because of his race and repeats his claims of harassment by the SLA and his brother-in-law’s abduction in 2006.
The submission argues that the applicant was constantly perceived to be anti-government as evidenced by the harassment episode while he was carrying out his job as fisherman. It adds that as he has fled Sri Lanka to Australia he would be imputed with association with the LTTE. Young Tamil males are regularly considered supporters of the LTTE. As the applicant has fled Sri Lanka he would be imputed with anti-government sentiments.
The submission continues that if returned to Sri Lanka as a failed asylum seeker, the chances of being detained by the SLA and authorities would increase. The applicant instructs that he would be accused of being a spy and punished accordingly. The submission refers to UNHCR Guidelines and county information including from US Department of State reports, Human Rights Watch, news articles and the UK Upper Tribunal decision GJ and Others.
The Tribunal hearing
The applicant confirmed that he is single and that his mother, [sisters] and brother-in-law continue to reside in Sri Lanka as does his father, though his father has remarried. He stated that he is in regular weekly contact with his family and they are all fine. He said that he worked as a fisherman. He did not own a boat but his brother-in-law does and he fished with his brother-in-law or with his cousin. They fished around the [District 1].
He stated that he travelled to [Country 1] and worked [there] between 2005 and 2007.
The applicant stated that he has not had any involvement with the LTTE nor has he had any involvement or problems with the police; he has no criminal charges or history.
I asked why he left Sri Lanka and claimed asylum. The applicant replied that Even though the war has ended in Sri Lanka and despite a change in government the problems for Tamils continue.
He referred to his brother-in-law being abducted while the applicant was in [Country 1] and that his mother had to “give a bribe’ to have his brother-in-law released. He added that “they” came again after the heavy fighting and whenever his brother-in-law was not at home “they” would take him. After the applicant came to Australia his brother-in-law had more problems – he was “caught” it was related to [work] which his brother-in-law also does. He did not know but the case is ongoing.
I asked the applicant to elaborate on his statement that he, the applicant, was “taken” whenever his brother-in-law was not at home. He replied that he was not taken but that it may happen. He added “for example if they are looking for someone and that person is not there they would take the person who is there”.
I asked the applicant if he had any adverse dealings with authorities in Sri Lanka. He said once and referred to the incident relating to the fishing permit. He said that his mother “saved” him. I asked if anything further happened after that incident. The applicant replied nothing further happened but whenever he went to work, “he had a different expression on his face”. I asked if he tried to obtain a permit. The applicant replied that he did not as he did not need it because he worked on the shore processing the fish, his brother-in-law fished.
I asked if he had any other incidents with the authorities he wished to present. He said ‘no’ but added that his difficulty is race related and apart from being a Tamil, he came from a backward area and was not able to get a good education. He said some Tamils do well because they come from rich ancestry but more than 50% of Tamils do not do well. He did not enjoy the same freedoms he has come to know in Australia. His mother thought at least one in the family should have better treatment that is why she sent him to Australia.
I asked the applicant again what he fears if he were to return to Sri Lanka. He said his brother-in-law is in [District 1], he is too afraid to go home because they would come looking for him. So if the applicant were to return, they would take the applicant in the absence of his brother-in-law. He added that if he were (hypothetically) to be arrested in Australia he can be sure to be treated in accordance with the law, whereas in Sri Lanka he could be taken anywhere and killed.
I asked why he believes he would be arrested in Sri Lanka. He replied that there should not be any reason but that it could happen and they could take his money. His life could be at risk. He does not wish to return and live like a slave in Sri Lanka. His mother sent him on a risky journey (to Australia) so he could have a better life.
I referred to his claim in his statutory declaration relating to fear of ‘grease men’ and asked whether he continues to be a source of fear. He replied that it was an incident in the past and he cannot predict if it will happen again. He said it was a concern when he left Sri Lanka in 2012. Noting that his fear of ‘grease men’ was fear for his mother and sisters leading to him staying up all night to protect them, I asked him to explain how he considered that his mother and sisters would be safer by leaving them and coming to Australia. He replied it was because his brother-in-law was there. I put to the applicant that his evidence earlier was that his brother-in-law was too afraid to go home which is inconsistent. The applicant replied that his mother sent him to Australia to protect him and was comforted by his brother-in-law frequently returning home.
I asked if the applicant and any other fears of returning to Sri Lanka. He replied that he is unable to specify but the freedoms in Australia do not exist in Sri Lanka.
I discussed with the applicant the substance of reports from the Department of Foreign Affairs and Trade (DFAT) and other sources relating to illegal departure and failed asylum seekers returning to Sri Lanka.
The applicant’s representative made a brief oral submission reiterating the written submission and noting that country information does not indicate ‘absolute security for a young Tamil who has been in a western country for many years’ and there is a chance that the applicant would be taken as member or supporter of the LTTE.
Country Information
Tamils
The DFAT report of 16 February 2015 provided:
Security Situation
2.33The conflict between the Government and the LTTE ended in May 2009 with the military defeat of the LTTE. The security situation in Sri Lanka has greatly improved as a result–no terrorist or large-scale military attacks have occurred since the end of the conflict. Sri Lankan security forces–military, intelligence and police–exercise effective control over the entire country.
2.34On 31 August 2011, the Government ended a state of emergency which had been in place almost constantly since 1971. Under the Emergency Regulations, security forces had broad powers of arrest and detention, including the ability to hold suspects for up to a year without charge. Several elements of the emergency regulations remain in force under the Prevention of Terrorism Act 1979 (PTA).
2.35Some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role supporting it in the north and east. While these groups have reportedly renounced paramilitary activities, DFAT is aware of reports that they continue to be active in Sri Lanka, including in criminal activity. While credible, these reports are difficult to verify.
…
2.37 The security situation in the north and east has greatly improved since the end of the military conflict. With the cessation of fighting, the humanitarian situation in these areas has also improved. The end of the conflict has allowed reconstruction to occur, including the repair of the main highway, railway and ports linking northern Sri Lanka to the rest of the country. In turn, this has helped to reduce the cost of transport and of basic goods in northern Sri Lanka.
…
3.5 Overall, DFAT assesses that there are currently no official laws or policies that discriminate on the basis of ethnicity or language (‘official discrimination’) including in relation to access to education, employment or access to housing. DFAT further assesses that there is only a low-level of discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particularly ethnic groups (‘societal discrimination’), largely as a result of the civil conflict and its causes.
…
3.12 However, the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict. According to the United Nations’ High Commissioner for Refugees’ (UNHCR) eligibility guidelines released in July 2010, due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[1]
Failed asylum seekers and illegal departure
[1] DFAT Country Report, Sri Lanka, 16 February 2015.
The DFAT report continues:
Torture or mistreatment of returnees
4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.
4.21 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This is due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.
…
Treatment of Returnees
5.22 Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).
5.23 Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.
Exit and Entry Procedures
5.24 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.
5.25 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.
5.26 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.
Offences under the Immigrants and Emigrants Act
5.27 Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.
5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.
5.29 DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim.

DFAT advice[2] provided:
[2] DFAT Thematic Report - People with Links to the Liberation Tigers of Tamil Eelam 3 Oct 2014
2.8 DFAT assesses that, as of October 2014, the LTTE does not exist as an organised force and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on civilians or those returning from abroad.
Imputed membership of the Liberation Tigers of Tamil Eelam (LTTE)
2.9 The United Nations High Commissioner for Refugees’ (UNHCR’s) December 2012 Eligibility Guidelines for Sri Lanka note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
2.10 Accurately identifying people according to these categories can be difficult. However, depending on their risk profile, former LTTE members may be subject to monitoring, arrest, detention or prosecution by Sri Lankan authorities.
High-profile former LTTE members
2.11 Those at highest risk of monitoring, arrest, detention or prosecution include the LTTE’s former leadership, regardless of whether they performed a combat or civilian role during the conflict. Although most of the LTTE’s military, political and administrative leadership were killed during the conflict, a number of others either surrendered or were captured and sent to rehabilitation centres or prosecuted. Some former leaders may have left Sri Lanka before, during or after the conflict (see also ‘Former LTTE members living outside of Sri Lanka’, below). In addition to the LTTE’s former leadership, a number of other former members were suspected to have committed terrorist or serious criminal acts during the conflict, or to have provided weapons or explosives to the LTTE.
2.12 DFAT assesses that these high-profile (‘high risk’ or ‘hardcore’) former members would likely be arrested, detained and prosecuted through Sri Lanka’s criminal courts, often following a period of detention in a rehabilitation centre. Although many high-profile members may have already been released following their detention and prosecution, any other high-profile members who remain at large or return to Sri Lanka would likely be arrested, detained and prosecuted in this way. Following their release from rehabilitation or prison, high-profile former LTTE members are likely to be intensely monitored by Sri Lankan authorities.
Low-profile former LTTE members
2.13 In addition to a relatively small number of high-profile LTTE members, many thousands of LTTE members have been arrested and detained in rehabilitation centres since the end of the conflict. Generally, this would include former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military material support to the LTTE during the conflict.
2.14 DFAT assesses that, although the great majority of these low-profile (‘low-risk’) former members have already been released following their detention, any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to rehabilitation centres. Following their release from rehabilitation centres, low-profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside of Sri Lanka
2.15 Although Sri Lankan Tamils have emigrated abroad since independence in 1948, the number of Tamils who left Sri Lanka grew quickly after the start of the civil conflict. There are at least one million Sri Lankan Tamils living outside of Sri Lanka, including in Canada, the UK, the Indian State of Tamil Nadu, France, Germany, Switzerland, Australia, Malaysia, the Netherlands, Norway and Denmark. Members of the Sri Lankan Tamil diaspora may be citizens of those countries, dual-nationals or will have arrangements to stay legally in their country of residence. Many members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from Tamil diasporas have traditionally been, and continue to be, an important source of income for family and community members in Sri Lanka.
2.16 Some members of the Tamil diaspora played a central role during the conflict, particularly as a source of funding, weapons and other material support for the LTTE, but also as political advocates for a separate Tamil state in Sri Lanka. Many countries’ designation of the LTTE as a terrorist organisation after September 2001 made it more difficult for the organisation to raise funds from Tamil diaspora communities.
2.17 Some Tamil diaspora groups have traditionally held and continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High-profile leaders of pro-LTTE diaspora groups may come to the attention of Sri Lankan authorities as a result of their participation in such demonstrations.
2.18 In general, DFAT assesses that Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
I will turn to assessing the applicant’s claims.
The kidnapping of the brother-in-law
I accept that the applicant’s brother-in-law was kidnapped for a ransom in 2006. Reports from a number of sources indicate that kidnapping for ransom frequently occurred throughout Sri Lanka. I have otherwise found the applicant in relation to this claim to be wildly inconsistent and he appeared to make it up as the hearing progressed. For example, in his statutory declaration of [October] 2012 he states that his mother and [sisters] live together with his brother-in-law; he said he fished with his brother-in-law around [District 1]. He said he feared ‘grease men’ would harm his mother and sisters but he left Sri Lanka because his brother-in-law was at the house living with his mother and [sisters]. He also said that he feared returning because his brother-in-law remained around [District 1] as he was too afraid to return home because ‘they’ will look for him; and if not there ‘they’ would take the applicant. I do not find the applicant to be a credible witness in this regard. I find that beyond the incident in 2006 there was not and there is not now any ongoing interest in the applicant’s brother-in-law by the authorities or any other group.
Grease men
Report of ‘grease men’ or ‘grease devils’ surfaced after a series of attacks on women in the north and east of Sri Lanka around August 2011. The International Crisis Group refers to these attacks in a paper: Sri Lanka: Women’s Insecurity in the North and East[3] (footnotes omitted).
[3] International Crisis Group 2011, Sri Lanka: Women’s insecurity in the north and east, Asia Report No. 217, 20 December, p.31 < “grease devil” saga: danger, rumour, and distrust of law enforcement and the military
In August 2011 there was a series of attacks on women
in the north and east by individuals labelled “grease
yakas (devils)”. The government went to lengths to dismiss
the incidents as “imaginary” or the product of an
anti-government or terrorist conspiracy. Yet, detailed
accounts from Batticaloa, Puttalam, Trincomalee, Man- nar, Vavuniya and Jaffna leave no doubt that many women were physically assaulted by men whose identities were concealed.216 These attacks, combined with the absence of
any effective law enforcement response and perceptions that
the security forces were in fact harbouring perpetrators, resulted
in vigilante attacks on suspected “grease devils” and
others. A policeman in Puttalam was killed by villagers on
21 August, and several civilianswere killed in vigilante attacks
or confrontations with the security forces.217
The fear inspired by the attacks and sensationalist media
coverage, including from the Tamil diaspora, distorted the
factual record to some degree. Points that are easily lost in
the competing narratives include:
‰ The incidents in the north and east started soon after public
outcry led to arrests in July 2011 for the murders of
seven mostly elderly women in the Kahawatta area in
the south between 2008 and 2011. These murders, some
of which involved sexual assaults, had sparked rumours
of a “bhoothaya (ghost)” in the area, echoed in the “grease
devil” label. Two soldiers and two military deserters reportedly
were among those arrested.218
‰ Some of the earliest “grease devil” attacks in August
were in the central highlands, including Hatton.
‰ None of the victims in the north and east, or in the central
highlands, were sexually assaulted or murdered. Nor
were lactating mothers or other specific women chosen
by the attackers – it appears to have been random within
localities. …
The applicant refers to incidents of grease men in his area occurring in August 2010. All reports and media coverage that I have seen indicate that these incidents began in August 2011. I will accept that some incidents may have occurred earlier and went unreported or that the applicant made an error in recalling the date.
Given the applicant’s concern for his mother and sisters leading him to ‘stay up all night’ in fear of attacks by grease men, and that his mother and unmarried sister depended on him, I asked the applicant to explain how he would better protect them by leaving Sri Lanka. He said that his brother-in-law was living at the house, therefore would provide protection. That evidence became less reliable later in the hearing as can be seen above.
In any event, I asked the applicant specifically about his fear of grease men, he replied that that was an incident that happened in the past and he cannot predict if it will happen in the future. I have considered the applicant’s evidence and the country information relating to incidents involving grease men. I find that it is not systematic and discriminatory conduct for the purposes of s.91R(1)(c). I further find that the conduct feared does not have the necessary persecutory quality to warrant protection. Tamil/ Imputed political opinion/LTTE
In his statutory declaration, the applicant claimed that his brother-in-law was abducted by “white van people” and held for 4-5 days and released upon payment of a ransom. He added that he has always feared it would happen to him. In his oral evidence, referring to the same incident, he stated that his brother-in-law was taken by “police” while the applicant was in [Country 1], and was held for 3-4 days and his mother had to pay a “bribe” to obtain his release. He added that “they” returned after the heavy fighting and whenever his brother-in-law was not at home, they took him, the applicant, and that it happened many times. I have accepted that his brother-in-law was abducted for ransom in 2006 and rejected that beyond that incident there was any interest in him by authorities or any other group. Accordingly I do not accept that any one returned to the house after the heavy fighting looking for the applicant’s brother-in-law or that they took the applicant in his place. I find the applicant has fabricated the additional evidence he gave at the hearing.
The applicant has stated that he has not had any connection or involvement with the LTTE or had any problems with the police or authorities other than the incident when he was found fishing without a permit. On his own evidence he was not harmed at that incident or subsequently. He stated that he chose not to obtain a fishing permit as he was able to work onshore while his brother went out in his boat to fish. He stated that following the incident the official that had earlier found him fishing without a permit when he went to work the official had a different expression on his face. In this regard, I accept the applicant’s claim to have had difficulties with the police in relation to not holding a fishing permit, but that he chose not to obtain one as opposed to have been unable to owing to his race. I neither find that this amounts to serious, nor significant harm. At its highest it was low level harassment. He was not targeted by the SLA, nor would he be upon return in the way claimed.
Otherwise the applicant’s claims of fear were entirely speculative about what could or might happen; based on comparative lack of freedom with Australia; or not having the same opportunities as other including other Tamils.
I have had regard to the country information set out above which that the situation for Tamils has improved since the war ended in 2009. The UNHCR provides that there was no longer a presumption of eligibility for Tamils. The DFAT report stated that compulsory registration has ended and monitoring and harassment of Tamils has generally eased since the war ended. There are no laws or policies that discriminate against Tamils on the basis of their race. DFAT also reports, and I accept, that Tamils experience low levels of societal discrimination and harassment in everyday life.
I have also considered the written and oral submissions by the applicant’s representative including the country information reports. However, I have given greater weight to the assessment by the UNHCR in its eligibility guidelines relating to risks faced by Tamils; and to the DFAT reports as I I consider the UNHCR’s assessment to be an authoritative and independent analysis of the situation for Tamils and the human rights situation in Sri Lanka; and I consider the DFAT reports to be an authoritative source with specific responsibility to provide such information to the Australian government.
Additionally I have considered the United Kingdom Upper Tribunal decision[4] (upheld by the Court of Appeal in England and Wales[5]) and United Kingdom Home Office reports as well as several other sources.
[4] GJ v Secretary of State for the Home Department (post civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).
[5] MP and NT (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829
I note that the UK Upper Tribunal decision comprehensively reviewed all information on Sri Lanka and concluded that the approach by authorities in Sri Lanka was based on sophisticated intelligence with regards to activities within Sri Lanka and abroad. The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
On this basis, considering the applicant’s individual circumstances as a fisherman and the country information, I find that the chance or risk that the applicant will be seriously or significantly harmed on the basis of his ethnicity or race as a Tamil is remote.
Based on the applicant’s circumstances and the country information, I find that he does not face a real chance of persecution on account of his Tamil race, or his actual or imputed political opinion or or as a Tamil fisherman or any other Convention reason, now or in the reasonably foreseeable future from the authorities or anyone else.
Based on his circumstances and the country information, I find 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 that there is a real risk that he will suffer significant harm on these or any other basis.
Failed asylum seeker
I discussed with the applicant the DFAT and other reports relating to failed asylum seekers returning to Sri Lanka.
In relation to whether the applicant will face persecution if he were to return as a failed asylum seeker having departed Sri Lanka in 2012. the DFAT report which provides:
3.8 The cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.
3.9 DFAT assesses that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities, if such activities occur.
The DFAT advice includes reports of a small number of alleged torture or mistreatment by returnees to Sri Lanka as failed asylum seekers. Many of these allegations are made by third parties and have not been able to be verified, however, DFAT also notes that for the many thousands of returned asylum seekers since 2009 from Australia and other countries the assessment of risk of torture or mistreatment is low including for breaches of the departure laws.
The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:
UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.[6]
[6] UN High Commissioner for Refugees, „UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka‟, 21 December 2012, p.8
I have considered the agent’s submission including reports from the UK Home Office and Human Rights Watch; and news articles of individuals who returned and faced questioning and torture; I note also that the Immigration and Refugee Board of Canada also acknowledged reports of systematic monitoring of returnees and arrests of Tamils.

However, I noted the significant change of circumstances since those reports including from the UNHCR and UK Upper Tribunal. An example of significant change by the current government: the governor in the north, a former retired army officer, has been replaced by a former diplomat. Restrictions on journalists operating and foreigners moving through the area have been lifted. Reports indicate that these changes are seen as having significantly improved and normalised the situation for Tamils.[7] Similar themes of improvements to the treatment of Tamils in Sri Lanka continue to surface in media reports.[8]
[7] Refworld.org. Group 22 – Information Centre Asylum and Migration Briefing Notes 26 January 2015 p8-9; and
[8] >
The applicant does not claim to have had any political involvement in Sri Lanka or outside Sri Lanka. Based on all the evidence the applicant has given, and the independent county information I do not accept that he is of any interest to the Sri Lankan authorities as suspected LTTE supporter, even though he is a young Tamil male. I do not accept that the applicant will face a real chance of being imputed with a political opinion as a supporter or the LTTE or any anti-government sentiments now or in the reasonably foreseeable future.
Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker; nor on any other Convention grounds of actual or imputed political opinion or membership of a particular social group such as a Tamil failed asylum seeker, or Young Tamil male and failed asylum seeker.
Based on his individual circumstances and the independent country information, I do not accept 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 on this basis.
Illegal departure
I relation to the applicant’s claim of fear because he departed Sri Lanka illegally, I accept that he entered Australia on a boat without a visa. I discussed with the applicant the consequences of departing Sri Lanka illegally and described information in reports including the DFAT report referred to above.
I accept that on returning to Sri Lanka the applicant will face questioning at the airport about his activities during the time he has been outside of Sri Lanka. I accept that he will be charged and may be convicted under Sri Lanka’s departure laws. The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates. I note the applicant has family in Sri Lanka who would be able to come and collect him from court. While I accept reports indicate that prison conditions in Sri Lanka are generally poor, they do not amount to the level of serious or significant harm and as noted earlier, the DFAT report indicates that all Sri Lankans are treated the same way regardless of religion or ethnicity and there is no evidence or information to indicate mistreatment of returnees held on remand. Given also my findings regarding the applicant’s profile being of no interest to the authorities, I find that the applicant will not be treated differently because of being convicted of breaches of departure laws for any Convention reason.
The applicant also stated that he is Christian, however, the applicant has not made any claims based on his religion and nothing arises on the facts that would suggest that there is a real chance he would face serious or significant harm now or in the reasonably foreseeable future on the basis of his religion if he were to return to Sri Lanka.
Considering the applicant’s individual circumstances individually and cumulatively along with the independent country information, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any Convention reason. His fear of persecution is not well-founded.
I have also considered the Department’s Complementary Protection Guidelines as required by Ministerial Direction No. 56. I find that any short term detention or fine does not amount to persecution for a Convention reason because it is the enforcement of generally applicable laws which are not applied with discriminatory intent or effect; nor are they applied selectively or in a discriminatory manner for a Convention reason or non-convention reason. Having regard to the DFAT Country Report on Sri Lanka to which I referred above, the Tribunal does not accept that there is a real chance that the applicant will face serious harm at the airport on the basis of illegal departure now or in the reasonably foreseeable future.
I have not accepted there to be a real chance that the applicant will face serious harm if he were to return to Sri Lanka. I have accepted that he will be questioned on arrival at the airport and in his village; that he will be charged under Sri Lanka’s departure laws and would be bailed. To the extent that there is a risk the applicant may suffer harm as a result of this process; s.36(2B)(c) qualifies that it is not taken to be a real risk as it is a risk faced by the population generally and not by the applicant personally. The reasoning in SZSPT v MIBP[9], suggests that the ‘faced personally’ element of the qualification in s.36(2B)(c) requires the individual to face a risk of differential treatment. On the basis of my findings that the applicant is of no interest to the authorities in Sri Lanka, I am satisfied that any risk he is likely to face is one that would be faced by the population generally.
[9] [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]-[14].
I have found that the applicant will not face a real chance of serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Court of the Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test in the assessment of ‘well-founded fear’. I have accepted that the applicant will face some low level discrimination and harassment on his return to his home region. However I do not accept that these rise to the level of significant harm. While I have found that he will be charged and convicted under Sri Lanka’s departure laws, I do not find any harm he would suffer to amount to significant harm within the meaning of s.5(1) of the Act. I have also had regard to the Procedural Advice Manual. As I did not accept the applicant has experienced any other harm in the past above and beyond the low level harassment relating to the fishing permit, I do not accept the submissions from the applicant’s representative as establishing a basis for serious or significant harm. Having regard to the definition of significant harm, I do not find the harm I have accepted amounts to significant harm within the meaning of s.36(2A).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
George Haddad
Senior Member

ATTACHMENT
RELEVANT LAW
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.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.

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1400975 (Refugee) [2016] AATA 4873

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SZSPT v MIBP [2014] FCA 1245

[2016] AATA 4873

29 June 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing