1400997 (Refugee)

[2015] AATA 3145

1400997 (Refugee) [2015] AATA 3145 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1400997

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:James Jolliffe

DATE:8 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)

Statement made on 08 July 2015 at 12:26pm

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] April 2013 and the delegate refused to grant the visa [in] December 2013.

3. The applicant appeared before the Tribunal by video link on 18 March 2015 and  21 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.

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

   Relevant law

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

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.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Departmental and Tribunal files relating to the applicant as well as information from a range of sources

11. The issues in this case are the applicant claims to fear harm on the basis of his Tamil ethnic extraction and on the basis that he could be perceived to have an actual or imputed political opinion of being pro-LTTE.  An issue that was unresolved by the applicant and his representative at the first hearing was whether the applicant also claimed to fear harm if he returned to Sri Lanka on the basis that he could be at risk of harm as a member of a particular social group of failed asylum seekers who left illegally and sought refuge in a western country. The applicant told the Tribunal at the second hearing that he feared harm on that basis.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

13. In his protection visa application the applicant claimed that he was born [in] the Jaffna district in the northern province of Sri Lanka. The applicant claims to be of Tamil ethnic extraction and of the Christian faith. The applicant claimed that he married [in] January 2005. He claimed that he only held Sri Lanka citizenship and had no right to enter or reside temporarily or permanently in any other country. He arrived in Australia [in] August 2012 as an unauthorised Maritime arrival. He claimed not to have a Sri Lankan passport. The applicant claimed to have been educated in Sri Lanka [to a stated level]. The applicant claimed to have worked as a fisherman between 1998 to July 2012 before coming to Australia. The applicant claimed to have a wife and [children] in Sri Lanka and that his father and stepmother and siblings live in Sri Lanka.

14. The applicant provided a statutory declaration/statement in support of his protection visa application. In that declaration the applicant provided his personal details and also claimed to have had problems in Sri Lanka because of his Tamil ethnic extraction and that as a result he suffered problems with both the LTTE and Sri Lankan authorities. He claimed in that declaration that during the war the LTTE used to recruit members from Tamil families. He claimed that he was living in the LTTE controlled area of [District 1]. He claimed that he was the only young male of his family living in the area and that in December 2008 the LTTE came to his family. He claimed at this time that he was in his house with his wife and [child] and that the LTTE took him to another house where he was interrogated. He claimed he was interrogated about why he had sent his brother to an army controlled area. The applicant denied that he had sent his brother to that area and told the LTTE that his brother had gone with his uncle and relocated. He claimed the LTTE did not believe him and he was beaten and he was also asked to join the LTTE. He claimed he was beaten over two days for about two hours each day and that he was detained for about six weeks. He claimed that he suffered an ongoing injury as a result of his beatings and that he still feels pain as a result of the injury on his right thigh.

15. The applicant claimed that his wife had visited him twice while he was detained by the LTTE and that she begged for his release and that on the second occasion he was released. He claimed the army was advancing in the area at the time of his release. He also said that he did not report the incident to the police. The applicant claimed that after this he moved to an army controlled area in [District 2]. He claimed that in the beginning of 2009 the police came to his house and asked if he was an LTTE member. He claimed that the police had said that each Tamil family “should have a member working for the LTTE. I denied. Nothing happened then”.

16. The applicant claimed that in 2010 the CID required him to attend at their office and he was asked whether he was an LTTE member and whether he had helped the LTTE. He claimed that he was not an LTTE member but that he had helped the LTTE because he was afraid that he would be killed if he did not do so. He claimed the CID threatened to send him to Colombo if he did not tell the truth. He claimed that he attended at the CID on three occasions and that he was questioned between one to one and a half hours on each occasion. He claimed he was photographed on two of these occasions. He claimed he was fearful of being sent to Colombo and claimed that a neighbour had been sent to Colombo for investigation and had never returned. He claimed he did not report to the police about this incident but decided to leave Sri Lanka and come to Australia and seek protection.

17. The applicant claimed after he arrived in Australia that his wife was investigated by the CID and threatened on two occasions. He claimed that the police and the CID had discriminated against him because he was a Tamil and that he was targeted and questioned since 2009. He claims that the CID and police had been discriminatory in their actions towards him and he claimed that he had tried to clear himself “of any connection with the LTTE”. He claims their conduct towards him “was aggravated by taking photograph of me for reasons I was not aware of. They threatened to send me to Colombo”. The applicant claims  to fear that he will be tortured and killed if the police or the CID detain him again and he claims this fear is supported by the questioning and threats to his wife after he came to Australia. The applicant claimed he could not seek protection in Sri Lanka.

18. The applicant was interviewed by a Department delegate [in] October 2013 in relation to his protection visa application. The delegate declined to grant a protection visa to the applicant and was not satisfied Australia had protection obligations to the applicant under the Refugees Convention. The delegate was also not satisfied that the applicant was entitled to protection under the complementary protection provisions in the Migration Act. A copy of the delegate’s record of decision was provided to the Tribunal with the application for a review.

19. The applicant’s representative provided written submissions to the Tribunal dated [in] March 2015 ( before the first hearing) . Those submissions also attached two letters. The representative claimed that one of those letters had been sent to the applicant’s wife by the Sri Lankan police. The second letter was said to be from a Northern provincial Council member in Sri Lanka in support of the applicant’s claims. The letter to the applicant’s wife (from the police) referred to the applicant having not reported “to our office in spite of numerous requests”. The letter claims that if the applicant does not attend that the applicant’s wife would be “subjected to severe measures”. The letter is not on letterhead and has been translated and is dated [in] July 2014 and purports to come from a “police officer, [District 1]”. The second letter purports to come from [an official] of the Northern Provincial Council and is dated [in] April 2014. The letter refers to the applicant and suggests that the applicant was suspected of being associated with the LTTE and that he had been the subject of surveillance by the security forces as a result. The letter claims that the applicant left Sri Lanka due to a fear for  his life and that if he returned to Sri Lanka his life would be in danger because of the security forces having an interest in him.

20. The written submissions on behalf of the applicant in summary referred to his personal details and repeated the claims that he made in his statutory declaration in relation to having been detained by the LTTE for around six weeks and that he was beaten during that time. The submissions suggest that the applicant was interviewed in a camp on one occasion in 2009 about whether he had LTTE connections. The submissions suggest that when the applicant and his family relocated in around May 2010 to their home area that the applicant was questioned by authorities on five occasions. The submissions state that the army came to his home and took his photo on one occasion and that on the next three occasions he was questioned by the CID at their office and that on the final occasion the CID came to his home and took his photo. The submissions suggest that on these occasions the CID threatened to take the applicant to Colombo for further questioning. The submissions suggest that the applicant’s wife has been questioned by the CID on three occasions and threats made to her since the applicant has been in Australia.

21. The submissions in summary seek to address issues raised by the delegate in the record of decision. The submissions refer to the delegate’s concerns about the applicant’s interaction with the LTTE and credibility aspects raised by the delegate over the applicant’s claims in relation to his interaction with the LTTE. The submissions refer to a report from the Refugee and Immigration Board of Canada in 2011 regarding the Sri Lankan government continuing to look for former LTTE members among the Tamil population. The submissions suggest that report lends credence to the applicant’s claims in relation to the questioning that he claims he was subjected to in 2009 and 2010. The submissions also refer to the applicant’s interaction with the Sri Lankan police and the CID.

22. The submissions seek to clarify the number of times that the applicant was approached by authorities and the submissions say that the applicant was approached on five separate occasions after he returned to his home town or village and the first of these occasions was approximately August 2010 and the final occasion was around May or June 2012. He claimed his photo was also taken on two occasions. The submissions also raise the applicant’s claims that his wife has been questioned by the CID on three occasions since the applicant came to Australia. The submissions also refer to the letter of July 2014 which was said to have been sent by the CID to the applicant’s wife. The submissions refer to the delegate’s concerns regarding the applicant’s claims in relation to his wife being questioned. The submissions refer to the applicant’s claims in relation to a perceived political opinion of being supportive of the LTTE and to his claims that he fears harm on the basis of his Tamil ethnic extraction. The submissions suggest that the applicant has a profile that would put him at risk in Sri Lanka because he had a previous involvement with the LTTE during the time that he had been detained by the LTTE for six weeks from late December 2008. The submissions suggest that the applicant is at risk of harm on the basis of this connection and that the investigations by the CID together with his photograph having been taken cause the applicant to fear that he will be harmed if he returned to Sri Lanka and that he is entitled to protection in Australia. Further written submiisions were received by the Tribunal after the second Tribunal hearing. Those submissions are dated [in] May 2015  and will be referred to later in these reasons.

    TRIBUNAL HEARING

23. The applicant appeared before the Tribunal by video link on 18 March 2015 and 21 April 2015 to give evidence and present arguments. The applicant’s representative attended by telephone. The applicant confirmed his personal details and including his name and date of birth and employment details . He told the Tribunal that he was claiming protection on the basis of his Tamil ethnic extraction. The Tribunal noted that the applicant is a Catholic, although he did not claim to the Tribunal to fear harm on the basis of his religion. The applicant also claimed that he was seeking protection on the basis that he feared harm if he returned to Sri Lanka because he could be perceived to have an imputed political opinion of supporting the LTTE. The applicant did not clarify to the Tribunal initially , whether  he was also claiming to fear harm if he returned to Sri Lanka on the basis of being a failed asylum seeker who left Sri Lanka illegally. As indicated in these reasons that aspect was clarified at the second hearing by the applicant who confirmed that he feared harm on that basis.

24. The applicant referred to a media report from the Internet on 8 March 2015 that eight people had been arrested in Sri Lanka upon their return to Sri Lanka on suspicion of being connected to the LTTE. The applicant and his agent said that that material would be sent to the Tribunal. That material was never provided to the Tribunal. The applicant, told the Tribunal that he had never been a member of the LTTE but had been forced to help the LTTE and he explained that he been involved in building bunkers and also in terms of preparations for Heroes Day. He said that he had helped the LTTE in terms of building the bunkers after he had been released by the LTTE. He claimed in his statutory declaration that he had been detained by the LTTE for about six weeks from December 2008. The Tribunal asked the applicant about his claims in relation to having been detained by the LTTE and referred the applicant to his statutory declaration in  support of his protection visa application when he had difficulty recalling the dates. He told the tribunal that he had been interrogated and assaulted for two days by the LTTE and that was because he was being asked by the LTTE about why he had sent his [brother] to army controlled territory. He claimed that he was questioned and assaulted for about two hours each day for the two days about this issue. He said he denied to the LTTE that he had sent his brother away to an army controlled area and said that he had sent his brother away with his uncle. He said that he had been assaulted with a baton /wooden stick  and that he had been beaten on his right thigh and that two people had been involved in questioning and beating him. He said one person beat him and one person asked the questions. He claimed after two days that he was locked up in a room in a house and that he was still asked questions, but was not beaten. He said he was detained in an LTTE camp in [District 1].  He claimed that while he was in detention he was threatened by the LTTE that he would be recruited or conscripted into the LTTE if he did not tell the truth about his brother. He claimed that his brother was [a stated age] and that he (the applicant) was detained because his brother was not available. He said he was being questioned because he was the oldest male son in the family. The applicant said that he told the LTTE that he was married and that he did not wish to be conscripted. He said that the questioning would take place every 2 or 3 days and he would be taken out of the room, questioned and then returned to the room. He was not made to do any work in that time. He said he still had on going problems because of the beatings to his right thigh. He told the Tribunal that he had seen a Doctor [while in Australia] about the pain he was suffering in his thigh and that x-rays been taken but nothing had been discovered in terms of damage but he claimed that he still had pain.

25. He told the Tribunal that he had eventually been released by the LTTE because his wife had pleaded for his release and the Sri Lankan army was advancing on the area in which he was being held. He said he had also been released because he had denied that he had been responsible for getting his brother to relocate to an army controlled area. The applicant was released in January 2009 by the LTTE. The applicant indicated that he had difficulties because of his poor education in remembering dates. The Tribunal noted that the war had ended in May 2009 and in those circumstances the fighting between the LTTE and the army was quite intense in that period and in those circumstances the Tribunal asked why he had not been conscripted by the LTTE. The applicant said that the LTTE had a policy of not recruiting married people and that he was responsible at that time for looking after his wife and child, together with another child. The Tribunal indicated that it had some concerns about the applicant’s credibility given the difficult situation facing the LTTE and the intensity of the fighting at that time that he would have been released by the LTTE in all those circumstances. The applicant told the Tribunal that in January 2009 he had left the LTTE controlled area to get to an army controlled area and that there had been several stages involved in that travel before he got to [District 2]. The Tribunal had difficulty in getting the details from the applicant about his movements around this period. He told the Tribunal he had memory problems and difficulties in recalling dates. The Tribunal found the applicant’s evidence about this aspect of the applicant’s claims to be difficult to understand in terms of the travel movements and the time involved. The Tribunal asked the applicant about paragraph 10 of his statutory declaration in support of his protection visa application where he had referred to not reporting to the police after he was released by the LTTE. The Tribunal had difficulty understanding the applicant’s response to the question, but in essence understood the applicant saw no purpose in reporting or complaining to the police about what had happened to him because he was in an LTTE controlled area.

1. The Tribunal asked the applicant if he had any other dealings with the LTTE after he had been released in January 2009. He told the Tribunal that he had been forced to build bunkers for the LTTE in [a certain location] and this had involved work for three or four days on three or four occasions.  He told the Tribunal that he had travelled through [various locations] before reaching [District 2] and that this had taken  seven or eight months. He told the Tribunal that he was in an army camp the day after the war ended in May 2009. The Tribunal indicated that seven or eight months would have meant that it would have been August or September 2009 before the applicant reached [District 2]. The applicant said he had difficulties with his memory. He told the Tribunal that he was not taking any medication in relation to any conditions affecting his memory. The applicant’s representative referred the Tribunal to the relief and assistance card that the applicant had provided to the Department and which was on the Department file. Although the copy of that document is poor, it is possible to ascertain  a date in “04/09” as the first entry on that card which indicates that the applicant and his immediate family were in a camp in [District 2] in April 2009.

2. The Tribunal asked the applicant about paragraph  11 of his  statutory declaration. The applicant said that he could recall the police asking him if he was an LTTE member on that occasion, but that nothing had happened as a result of the police questioning. The applicant said that he was questioned again (see paragraph 12 of his statutory declaration) after he had returned to his home from living at [another location]. He said he thought that this had occurred in around May or June 2010 in terms of the questioning. He said that the army then came to his home around three months later, which he thought was around August September 2010 and took his photo and did not interrogate him. He said after this incident about three months later the CID had come in around December 2010 and asked him to report to the CID office. He said the CID office was very close to his home. He said on that occasion he had been asked if he was a member of the LTTE and he claimed that he was threatened with being sent to Colombo. He told the Tribunal that because of the manner of the people questioning him he thought they might assault him. He claimed he was questioned for about two or three hours. He told the Tribunal that he had not had any contact with the LTTE after February 2009. The applicant’s agent submitted to the Tribunal that the applicant had difficulty with recalling dates because of his poor education. The Tribunal, as indicated, had difficulty in obtaining the dates and details on occasions surrounding particular incidents in relation to the applicant’s claims.

3. The applicant, told the Tribunal that the CID had not hit or harmed him or mistreated him during the three occasions on which he said he had been questioned by the CID. He said the next time was around March 2011. He again said that he was asked whether he had been a member of the LTTE. He said that he had helped the LTTE and he claimed that he was threatened with being sent to Colombo for further questioning. He again told the Tribunal that even though he had not been assaulted he felt threatened. He told the Tribunal on the third occasion on which had been questioned it was about three or four months later, in around July 2011. He said the same questions about whether he had been a member of the LTTE had been asked by them and he said he had “helped LTTE” by digging bunkers and helping with the preparations for Heroes Day celebrations. He said he was again threatened with being taken to Colombo for questioning, and he thought that meant that he would be killed or would disappear. He told the Tribunal that there was then a break of about 10 or 11 months before the CID came to his home again and took his photo. That was around June or May 2012. He said that on that occasion he was told “we are going to send you to Colombo for enquiry and we will come and take you”. The applicant said the next day he decided to go to Jaffna and stay with relatives. He said that he only returned back to his home on one occasion before he left to come to Australia and that was on 12 July 2012 when he returned to see his wife before he left to go to [a certain town] to leave Sri Lanka.

4. The Tribunal asked the applicant about the entry interview document and in particular questions one and six in part C of that document. He told the Tribunal that he was stressed at the time of the entry interview and he may have missed things out in terms of providing details about his claims.

5. The Tribunal asked the applicant about his claims that his wife had been threatened and referred the applicant to the letter which had been attached to the written submissions [in] March 2015 lodged by the applicant’s representatives. That letter was said to have been sent by the Sri Lankan police to the applicant’s wife and the letter is dated [in] July 2014. The letter was hand written and an English language translation had also been provided. The Tribunal told the applicant that it was concerned as to the veracity of that document, given that it was hand written and not on letterhead. The applicant said that he had sent the letter to his representatives about two weeks before the Tribunal hearing. The applicant said that his wife had been threatened on three occasions but he could not remember the details. He claimed that the third time his wife had been threatened was [in] August 2013 but could not remember the details. He said his wife had been visited twice by the CID, up until November 2012. He said his wife relocated to Jaffna after that. He claimed on one occasion that the CID had spoken to his wife and said that they had come to take the applicant to Colombo and that his wife had said that he was not there and he then said that the CID had threatened to take his wife for interrogation. The Tribunal indicated that appeared to be a new claim that had not been raised before. The applicant’s representative said that the applicant had raised the claim of threats to his wife in his statutory declaration, and also referred to the email that was referred to in the delegate’s record of decision (see page 7 delegates record of decision) in which reference was made to a visit to the applicant’s wife by Sri Lankan authorities [in] August 2013 and at which time it was claimed that the authorities had spoken to the wife in a threatening way in relation to what would happen to the applicant if he returned to Sri Lanka.

6. At the second Tribunal hearing on 21 and April 2015 the Tribunal asked the applicant further questions as to the claimed threats to his wife. The applicant told the Tribunal that the letter which he claimed had been sent by the police to his wife dated [in] July 2014 had been sent to him by his wife. He told the Tribunal nothing had happened to his wife since receiving the letter and that his wife had not had further contact from the police. Reference was made to the claim in his statutory declaration in support of his protection visa application (see paragraph 13) that his wife had been threatened by the CID since he came to Australia. Reference was also made to the claim that has been referred to in the delegate’s record of decision and which has already been referred to in these reasons regarding the claimed visit [in] August 2013 by Sri Lankan authorities to the applicant’s wife. The applicant told the Tribunal that apart from the three occasions on which his wife had been spoken to and the letter [in] July 2014 his wife had not had further contact with Sri Lankan authorities. He claimed he could not remember the dates involving two of the visits to his wife but he believed those visits happened within three months after he arrived in Australia. His wife had relocated to Jaffna after one of the threatening visits.

7. The applicant was asked about his employment in the fishing industry in Sri Lanka and referred to information contained in the protection VISA replication that the applicant had been involved in the fishing industry in Sri Lanka. He told the Tribunal that he had been involved in working on a boat but had not had any difficulties with authorities while he was working as a fisherman, but did refer to the need to have identification passes.

8. The applicant was asked about the claim in the written submissions [in] March 2015 (see page 7) that the applicant had lived in an LTTE civilian camp on two occasions. He said that he had not had real contact with the LTTE when he had lived in the camp referred to in the period from December 2008 until early 2009 when he had been compelled to help the LTTE when he had been in [District 1]. He claimed that after he had been released by the LTTE that he had assisted in building bunkers in January 2009 for about three or four days. He was also asked about his claim in the entry interview document (see question five part C) that he had been compelled to train with an LTTE group called the people force. The Tribunal asked the applicant further questions about the claim that the LTTE had threatened to conscript him. The applicant essentially repeated his claims that he had been beaten when he had been detained by the LTTE and threatened with being forced to join the LTTE and he referred to his wife visiting him when he had been detained and that he also had a young child. The applicant claimed that the LTTE had a policy of not initially recruiting married people, but that policy changed and he claimed that changed in January 2009, which was when the war was going badly for the LTTE. He said, notwithstanding the change that he had been released by the LTTE but then had to be involved in digging bunkers and that involved digging with shovels on three or four occasions and that he did not participate in any training with the LTTE only in digging the bunkers. The Tribunal noted that the applicant had not mentioned in the entry interview document that he had been detained for six weeks by the LTTE. The applicant said that he could not remember what he had said at the entry interview and said that he did not know what to tell the authorities who had questioned him when he had been [in detention in Australia]. He again referred to his memory problems but confirmed to the Tribunal that he was not taking any medication for any memory condition but did refer to having seen a doctor in relation to a small growth in his hand. He told the Tribunal that he had not spoken to the doctor about any memory problems nor had he complained to the doctor about any stress problems and confirmed that he was not taking any medication.

9. The applicant was asked about his claim to fear harm on the basis that he left Sri Lanka illegally and that if he returned to Sri Lanka, he would be a member of a particular social group of failed asylum seekers who left Sri Lanka illegally. He told the Tribunal that if he returned he would have a problem and referred to the Tamil news media story of people being arrested upon their return to Sri Lanka on suspicion of being supporters, or members of the LTTE. The applicant had referred to that media story at the first Tribunal hearing and had indicated that the Tribunal would be provided with a copy of that media material. The applicant’s representative said that she had not had time to forward that material to the Tribunal. As noted elsewhere in these reasons that material has not been provided to the Tribunal, notwithstanding that further written submissions were provided to the Tribunal after the second Tribunal hearing.

10. The applicant told the Tribunal that he was scared of the army and the CID in Sri Lanka and that was because they would suspect him of being a member or supporter of the LTTE and he would be questioned. He referred to the claim in paragraph 12 of his statutory declaration that the husband of a neighbour of his had been sent to Colombo for questioning and never returned. He said he is a Tamil person and that Tamil people face persecution in Sri Lanka. The applicant was asked about the claims in the submissions [in] March 2015 regarding the five occasions on which he had either been questioned or photographed. The applicant confirmed the sequence of events that were set out on page 5 of those submissions  He was also asked about his claims that he felt threatened. The Tribunal found it difficult to get precise details from the applicant about the basis for his fears in terms of what had occurred on those occasions. He told the Tribunal that he thought the CID were “about” to assault him and he thought they might assault him. The applicant’s representative intervened and said that the applicant feared threatening behaviour by the CID. The Tribunal indicated to the representative that it was trying to ascertain the facts in relation to the applicant’s claims that he feared harm and that was best achieved by being able to continue the hearing in an effort to ascertain the facts. The applicant said that there had been threatening gestures made by people questioning him. He said that the army had not threatened him. He said that there had been three occasions when he had felt threatened, but that did not include the last occasion.

11. The Tribunal asked the applicant about the circumstances relating to the provision of the letter from the Northern provincial Council member dated [in] April 2014 which had been attached to the submissions [in] March 2015. He said the author of the letter had been the principal of a school that he had attended and that the author of the letter was a politician who he said “was good to us.” He said that his wife had told the politician that the applicant’s Departmental interview had not been successful and that the politician said he would write a letter. The applicant said that the politician is from [District 1] and that he would see the politician, either once a week or about every three days when the applicant was in that area and that the applicant told the politician that he was having problems and had told him about the CID enquiries. The applicant also claimed that his wife had told the politician about enquiries of her by security personnel and that after the politician had written the letter, his wife sent the letter to him.

12. The applicant was asked if he had any further claims or issues or submissions that he wished to raise with the Tribunal. The applicant said that he did not know what further he could say, and he said if the Tribunal did not believe him and the truth of his claims and he was sent back he would be killed. In those circumstances, if he had to return he intended to write a letter and ask his lawyer if he could get a fatal injection in Australia so that he could die in Australia rather than return to Sri Lanka. He told the Tribunal he had [other brothers] and that he did not need to come to Australia for economic reasons.

13. The Tribunal, in relation to economic issues, raised with the applicant country information available in the DFAT country report for Sri Lanka dated February 2015 . The Tribunal referred to various issues in that report and noted information relating to employment and that report referred to significant unemployment in Sri Lanka and that a significant number of Sri Lankans leave Sri Lanka every year to an seek employment abroad. The Tribunal also referred to the security situation in Sri Lanka having greatly improved since the end of the military conflict and that the new President had appointed civilians in the North and East to strengthen civil administration. The Tribunal also noted that the report indicated that there were no official laws or policies that discriminate on the basis of ethnic extraction or language in Sri Lanka. The report also referred to the historical sense of discrimination felt by Tamil people in particular in relation to education and employment, but the report noted that successive Sri Lankan governments had made efforts to address ethnic and linguistic tensions. The report also noted that many Tamils expressed a fear of monitoring and harassment, arrest and detention by security forces, but that the cessation of the forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict. The report noted that Sri Lanka had no constitutional or other restrictions barring minorities from participating in politics on the same basis as any other citizen and that the Constitution guaranteed freedom of speech and expression and freedom of assembly and association, but that the Department assessed the tolerance for political dissent in Sri Lanka can be limited. The report also noted that incidents of extrajudicial killings and disappearances were assessed as having fallen considerably since the end of the conflict. The Department also assessed that there were credible reports of torture carried out by Sri Lankan security forces and these included reports in relation to suspected LTTE connections and that incidents of torture were not confined to any particular ethnic, religious or political group. The report also noted that the Department was aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. However the Department assessment is 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 for having left Sri Lanka unlawfully. The Department assessed that the risk of torture or mistreatment to returnees was greater for those suspected of committing serious crimes, including people smuggling or terrorism offences and that this risk was due to the greater exposure returnees would have to authorities where they could be facing extended periods of pre-trial detention.

14. The report also noted that prison conditions in Sri Lanka are poor and do not meet international standards. The report also indicated that the Department assessment was that there was no law or policy which hindered access to state protection on the basis of religion or ethnic extraction and that Sri Lankan citizens under the Constitution had a freedom of movement and relocation.

15. The  DFAT country report also referred to the treatment of returnees and the questioning upon return by officers from the Department of Immigration and Emigration, as well as state intelligence service officers and airport CID officers. The processing may take up to several hours and that returnees are checked against databases. The Department assessment is that returnees are treated according to standard procedures regardless of ethnic extraction or religion and that detainees are not subject to mistreatment during their processing at the airport. The report also refers to the processes undertaken where people are charged in relation to having left Sri Lanka illegally and unlawfully and subject to charges under the Immigrants and Emigrants Act. That information indicates that returnees subject to charges for having left unlawfully would be processed and that involved questioning and detention and arrest and then detainees would be taken before a court to make determinations in relation to issues such as bail. If a magistrate is not available then it may be that a detainee could spend up to several days in jail. The report also indicated that the Department had been informed by Sri Lankan authorities that no person who was just a passenger on a people smuggling venture had been subject to a custodial sentence, but that fines had been imposed to act as a deterrent. The fines had a typical range between 5000 and Rs.50,000 (although the Tribunal notes that penalties could include a sentence of up to 5 years and a fine up to Rs.200,000 under the Act). The Tribunal also indicated that it was open to the Tribunal to find that the enforcement of the Immigrants and Emigrants Act was the non-discriminatory enforcement of a law of general application.

1. The applicant responded to the country information in the DFAT report by referring to the claim that the new President was seeking greater civilian involvement in the administration in the North and East of Sri Lanka. The Tribunal told the applicant that it was referring to information contained in the DFAT country report. The applicant said that he had travelled to [an Australian city] in December 2014, and he had not seen any army camp in 24 hours while he had been travelling but that in [District 1]  there were many army camps.

2. The Tribunal referred to the DFAT thematic report of October 2014 in relation to people in Sri Lanka who are perceived to have links to the LTTE. The Tribunal noted in that report that in terms of the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka that Tamil people were not listed as being at risk per se on the basis of their Tamil ethnic extraction. Those guidelines indicated that there was a risk for people who were perceived to have an actual or perceived link to the LTTE and were at risk on that basis. The applicant said that he did not know what further to say in relation to that aspect.

3. The Tribunal also raised with the applicant information that it had that would be a reason or part of the reason for affirming the decision under review. That information related to information contained in the entry interview document. The Tribunal raised that information pursuant to s.424AA of the Act. The Tribunal indicated that the information was relevant in relation to its assessment of the applicant’s claims and was also relevant in relation to the Tribunal’s assessment of the applicant’s credibility in relation to his claims . The Tribunal noted that there was no mention in the entry interview document that the applicant had claimed that he had been detained by the LTTE for  a six week period. The Tribunal also noted that there was no real detail provided in the entry interview document about the claims in relation to the CID investigations in relation to his LTTE connections. The Tribunal asked the applicant if he wished to comment or respond to the information. The applicant said that he could not respond or comment further than he had already told the Tribunal about his claims. The Tribunal indicated that the applicant could have further  time to comment or respond.

4. The Tribunal raised with the applicant concerns it had about aspects of his evidence and the credibility of his claims. The Tribunal said it had concerns about the credibility of the applicant’s claims that he had been released by the LTTE in January 2009 in circumstances when the war was going against the LTTE and in those circumstances, it could have been expected that the applicant would have been conscripted by the LTTE. The Tribunal also raised concerns that it found aspects of the applicant’s evidence to be vague and to a degree inconsistent and those aspects related  particularly to the applicant’s claims about various times and dates in relation to his claims and to his location at different times when he claimed events occurred. The Tribunal referred to its concerns about the issues raised in the delegate’s record of decision regarding apparent inconsistencies and vagueness surrounding the occasions on which the applicant said he was either interviewed or photographed by the army and the CID. The Tribunal referred to the applicant’s statutory declaration which suggested that there had been three occasions when he had been questioned and the entry interview document suggested that there were two occasions on which he had been detained for questioning. The submissions [in] March 2015 indicated that there were five occasions where the applicant was either photographed or interviewed. The Tribunal indicated that it was concerned that the applicant could be exaggerating his claims to fear harm in relation to these incidents in an effort to strengthen his protection visa application. The Tribunal also raised concerns about the length of time over which the applicant said these enquiries were made by the CID .The Tribunal indicated that it had concerns as to whether the applicant had an actual  LTTE risk profile that would put him at risk in terms of the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. The applicant claimed that he was detained by the LTTE for six weeks and that after his release he had been involved in building bunkers but he did not claim that he had ever been a member of the LTTE.

5. The Tribunal also noted that the applicant had been employed in the fishing industry in Sri Lanka but did not claim to have been harmed or had any difficulties with authorities during that period. The Tribunal also referred to its concerns about the applicant’s claims that his wife had been threatened since he came to Australia and that his wife had received a letter from the police in July 2014. The Tribunal indicated that it was concerned about the veracity of the letter of July 2014 and indicated that country information indicated that document fraud is prevalent in Sri Lanka and that the format of the letter caused the Tribunal to have concerns about the veracity of that document. The Tribunal referred to the issues raised in the delegate’s record of decision in relation to the claimed threats to his wife and the circumstances in which those claimed threats were communicated to the applicant. The Tribunal also noted that the applicant had never claimed to have been harmed by the police or the CID, but that the applicant claimed that he had felt threatened. The applicant had no comments or responses other than to refer to the evidence he had given.

6. It emerged towards the end of the second Tribunal hearing when the Tribunal had been raising its concerns about various issues that the applicant’s representative’s phoneline had dropped out. Communications were restored after the Tribunal realised that there had been a technical problem and was able to contact the representative. The Tribunal after hearing from the representative about providing submissions allowed three weeks for the applicant’s representative to provide any submissions and including comments or responses to the Tribunal. The Tribunal allowed to close of business on 12 May 2015 for those submissions or comments or responses to be provided to the Tribunal and also agreed that the audio from the Tribunal hearing would be forwarded to the applicant’s representative to assist the representative.

7. The Tribunal received further written submissions dated 13 May 2015 from the applicant’s representative.

8. In summary those submissions sought to address concerns and issues raised by the Tribunal during the Tribunal hearing. The submissions( in summary) said that the applicant had provided documentary evidence to support the credibility of his claims and referred to the displacement camp documentation in relation to the relief assistance card and another document listing pregnant mothers from the camp and listing other family members in the camp. Reference was also made to the food ration card for the applicant and his family. The submissions indicate that  evidence establishes that the applicant was a displaced Tamil person who was in a displaced persons camp until late 2010. Reference was also made to the letter from [an official] of the Northern provincial Council, which was provided in support of the applicant’s claims. The submissions disagreed with the Tribunal’s concerns that aspects of the applicant’s evidence was vague and inconsistent at times. The submissions claim “the applicant has been consistent for the most part from his entry interview to the tribunal hearing considering the difficulties in interpreting language, and in recalling dates where traumatic experiences occurred. His core claims have remained the same”

9. The submissions also disputed the Tribunal’s concern that the applicant had exaggerated various aspects of his claims and referred to the issue about the applicant never claiming to have actually been physically hit or harmed but rather he apprehended that he would be assaulted by the CID during questioning. The submissions suggested that the applicant had been consistent in his claims in relation to this issue and that  evidence contradicted the Tribunal’s concerns that he had exaggerated his claims. The submissions also referred to the Tribunal’s concerns about the credibility of some aspects of the applicant’s claims and the submissions said “we also submit in the tone and questioning of the applicant that the Tribunal appeared to continually doubt the veracity of his claims and failed to take fully into account his documentary and oral evidence”.

10. The representative referred to” documentary evidence that the applicant had provided in the first Tribunal hearing” and suggested the Tribunal should have been more aware of those materials in terms of establishing aspects of the applicant’s claims. The submissions were actually referring to materials that had been provided to the Department  in relation to the applicant’s protection visa application. Those materials were on the Department file and were the relief assistance card and a food ration card and a list of pregnant mothers which included members of the applicant’s family. Those materials were not provided during the first Tribunal hearing but have been referred to elsewhere in these reasons. The submissions in essence suggested that those documents proved the applicant was in the conflict zone at the end of the war and then suggested the Tribunal  should have established those facts  and then  it would  have  taken more “seriously” the applicant’s claims that he was harassed and threatened by the CID on the basis of perceived links to the LTTE . The submissions suggested that the applicant had “provided a plausible reason why the authorities suspect he is a former cadre. They know he was in the war zone, and they are aware no other member of his family served in the LTTE”. The submissions refer to the applicants claims he was not recruited into the LTTE because he was married and also referred to country information that indicated that Sri Lankan authorities were continuing to search for Tamil LTTE cadres in the North and East of the country. The submissions conceded that it was difficult to verify as genuine the veracity of the document that was produced by the applicant and which was claimed to have been sent by the police to his wife, and claimed “ the applicant has provided substantial and credible documentary evidence to support his claims and we submit that the veracity of one document should not lead the tribunal to question the credibility of his claims and other evidence”. The submissions suggested that the applicant has a well founded fear of persecution, and has suffered or will suffer serious harm or faces a real risk of persecution if he returned to Sri Lanka. The submissions will be referred to elsewhere in these reasons where relevant.  The Tribunal also received a marked map of Sri Lanka that the applicant had used in the hearing to indicate his location during the period towards the end of the war.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. On the basis of the materials and information provided to the Department and available to the Tribunal the Tribunal accepts that the applicant is a Sri Lankan citizen and that his identity is as he claims it to be. The Tribunal accepts on the basis of the available information that the applicant does not have a right to enter or reside temporarily or permanently in any other country other than Sri Lanka. The Tribunal accepts that Sri Lanka is the applicant’s country of nationality for convention purposes.

12. The Tribunal has considered the applicant’s claims to have a well founded fear of persecution if he returns to Sri Lanka on the basis that he fears harm on the basis of his Tamil ethnic extraction and because he is perceived to have an imputed or real political opinion of being pro-LTTE. The Tribunal believes that the applicant also claims to fear harm if he returned to Sri Lanka on the basis he would be a failed asylum seeker who left Sri Lanka illegally and sought asylum in a Western country.

13. The Tribunal has referred elsewhere in these reasons to instances where it had concerns in relation to the applicant’s claims and his evidence in support of those claims. The Tribunal has referred to difficulties that it had in obtaining details when asking the applicant about particular incidents and the dates of particular incidents. The applicant told the Tribunal on a number of occasions that he had memory difficulties. His representative claimed the applicant’s poor memory was due to his poor education. The Tribunal has referred to its concerns about occasions when it found the applicant’s evidence to be vague or inconsistent in relation to some aspects of his claims. The totality of the Tribunal’s concerns that have been referred to elsewhere in these reasons inevitably cause the Tribunal to have concerns about its assessment of the applicant’s credibility. The Tribunal believes after having considered the totality of the evidence and the applicant’s claims that some of the difficulties that faced the applicant in the Tribunal hearing are in part due to the lack of clear and relevant detail in relation to some of his claims in his statutory declaration which was provided in support of his protection visa application. The Tribunal found it necessary to question the applicant in significant detail in an effort to clarify relevant issues relating to his claims. The applicant’s poor memory in relation to some aspects of his claims did not assist the Tribunal in its efforts to clarify issues. As indicated the Tribunal had been provided with a copy of the Department delegate’s record of decision with the application for a review.

14. The Tribunal has considered the applicant’s claims that he was detained by the LTTE in December 2008 and held for about a six-week period. He told the Tribunal that in that time he had been questioned about his [brother] having left an LTTE controlled area and relocating to an area controlled by the army. He said that the LTTE accused him of having arranged for his brother to relocate. He claimed he was physically mistreated for part of the time he was in LTTE custody. He claimed he was threatened with compulsory conscription by the LTTE. He claimed he was not conscripted because he was married with family. The applicant claimed his wife had also pleaded for his release by the LTTE .The applicant was detained during the period towards the end of the war in May 2009 and during a time when the war was going badly for the LTTE and clearly in those circumstances the LTTE would need manpower to continue to engage in the war. The applicant claimed that he was released by the LTTE but shortly thereafter was required to assist in building bunkers for the LTTE. The applicant said he had never been a member or supporter of the LTTE but had been compelled to assist in the building of the bunkers. He was not involved in that work for a very long period. He told the Tribunal that he and his family then spent time travelling to the army controlled area in [District 2]. He told the Tribunal that he was in a camp before the war ended in May 2009. The relief assistance card which has been referred to elsewhere in these reasons, indicates that he and his family were in a  Displaced Persons camp in [District 2] in April 2009.  The food ration card indicates he was resettled after [a date in] August 2010 , although there seems to be some confusion about that date in terms of when the applicant returned to his actual home in 2010 after he had spent some time at [another location]. He told the Tribunal that he thought he had returned to his home around May or June 2010.

15. The applicant in the entry interview document did not refer to his claim that  he was detained by the LTTE for a 6 week period. He did claim in that document that he had been questioned by the CID and authorities about whether he had been a member of the LTTE. He also referred to not being involved in “armed conflict but I have made bunker for them as it was compulsory to do it”. He also referred to having undergone formal training (of a military type) when he was living in areas under the control of the LTTE. In his statutory declaration in support of his protection visa application the applicant referred to his claim that he had been detained and interrogated by the LTTE for about six weeks and that he had been physically mistreated during part of that time. The declaration did not refer to him having been involved in building bunkers to assist the LTTE.

16. The Tribunal has considered this claim and had regard to the applicant’s evidence and the available country information and including relevant DFAT reports for Sri Lanka. The Tribunal has also considered its assessment of the applicant’s overall credibility in relation to his claims. The Tribunal, with some reservations in relation to some aspects,  accepts that overall the applicant is a credible witness. The Tribunal believes that in relation to some core aspects of his claims the applicant has been generally consistent in terms of his claims since he participated in the preparation of the entry interview document. However, the Tribunal does have concerns about some aspects of the applicant’s claims. The Tribunal accepts that the applicant has genuine difficulty on occasions in recalling details and particularly in relation to dates and times when he claims particular incidents occurred. The Tribunal on the evidence before it is not able to determine the basis of the applicant’s memory difficulties, but does accept he has memory problems on occasions.

17. The Tribunal accepts the applicant’s evidence and claims that he was detained for six weeks period by the LTTE. The Tribunal accepts the overall evidence that the applicant was in the conflict zone towards the end of the war in Sri Lanka and his evidence about what he said occurred to him when detained by the LTTE appears to the Tribunal to be credible having regard to the available information and evidence. The Tribunal is also prepared to accept that the applicant was never formally conscripted by the LTTE because he was a married person with family. The Tribunal notes a copy of the applicant’s marriage certificate is on the Department  file and discloses that the applicant married in [early] 2005. The Tribunal notes the article referred to in the submissions dated [in] May 2015 ( see page 6 of those submissions and the article referred to by DBS  Jeyararaj  regarding the LTTE’s attitude about declaring all marriages after August 2006 null and void for the purposes of conscripting people). In this regard the Tribunal also notes information contained in a IPA country advice request relating to LTTE recruitment practices ( IPAO country advice 2012 VIV051, 18 April 2012) that a Human Rights Watch report published in December 2008 referred to the LTTE. having forcibly re-mobilised former LTTE fighters who had since married and noting that previously married persons were exempted from forced recruitment by the LTTE and this was being done in an apparent effort to boost their ranks with experienced fighters. The applicant on the evidence before the Tribunal was not an experienced fighter or a former LTTE fighter. The applicant had told the delegate that he had a practice of taking his family photos and marriage certificate with him when he was travelling and that was for the purpose of ensuring that the LTTE would not forcibly recruit him. The applicant was adamant and consistent in his evidence to the Tribunal that he had not been recruited by the LTTE and that was because he was a married person with a family and his wife had also pleaded for his release. The overall evidence and information is consistent with the applicant’s claim that he was not forcibly recruited into the LTTE notwithstanding the manpower pressures it faced towards the end of the war. The Tribunal is also prepared to accept without any evidence to the contrary the applicant’s claim that he was physically mistreated during part of this period when he was detained by the LTTE. The country information referred to in the IPAO report also indicates that Human Rights Watch (see Human Rights Watch 2008 “trapped and mistreated: LTTE abuses against civilians in the Vanni, 15 December) refers to the LTTE using the civilian population to engage in projects involving the hazardous task of building LTTE military defences and that this included the construction of bunkers. That information is consistent with the applicant’s claim that after he was released from LTTE detention he was required to assist in the building of bunkers.

1. The Tribunal after having considered the evidence and available information is also willing to accept the applicant’s claims that he was either photographed and, or questioned by the army and the CID on six occasions in relation to his involvement with the LTTE. The Tribunal accepts that the first of those occasions was when the applicant and his family were in the camp in [District 2] in 2009. The applicant told the Tribunal that the sequence of the next questioning was in accordance with the claims set out on page 5 of the written submissions dated [in] March 2015 and which have been referred to previously in these reasons. As indicated previously the Tribunal, questioned the applicant about these claims. The applicant’s statutory declaration is, in the context of these claims, not as clear or detailed as it could have been in relation to the number of occasions that he was either photographed or questioned and the overall circumstances surrounding those claims. Despite the applicant’s memory difficulties, and on occasions, his sometimes vague evidence about issues the Tribunal is satisfied as to the applicant’s claims that he was either photographed or questioned on six occasions. The Tribunal is also satisfied as to the applicant’s claim that he felt threatened by the questioning that occurred on a number of those occasions even though he was not physically harmed. The Tribunal believes that the applicant was overall consistent in relation to his claims about these incidents even though he had difficulty recalling details about the dates and circumstances surrounding some of those incidents. The applicant told the Tribunal that the questioning on three of those occasions had been undertaken by the CID and that he was asked about being a member of the LTTE and threatened with being taken to Colombo for further questioning. He would then be released after the questioning. The questioning and these events appear to have taken place between late 2010 up until around May 2012. There is no evidence before the Tribunal that the applicant was ever placed in a rehabilitation camp in terms of any suspected LTTE connection. Information contained in the DFAT thematic report of October 2014 in relation to people with links to the LTTE indicates (see paragraph 3.5) that a survey of people who had been internally displaced and who had returned to their homes in the North and East had been registered by the military and 71% of those had been visited by the military or the police (CID) for interviews and that report also indicates that Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations in the North and East of Sri Lanka. That information is generally supportive of the applicant’s claims that as a Tamil person in the conflict zone towards the end of the war and having spent time in a displaced persons camp that he  would be a person of interest to Sri Lankan authorities. He told the Tribunal that he had told the CID that he had helped the LTTE in building bunkers and in making preparations for the celebration of  Heroes Day. The applicant’s Tamil extraction and his location towards the end of the war and his admission to the CID that he had provided assistance to the LTTE (although he claimed he was forced to do that) could reasonably be expected in all the circumstances, and in the context of country information to attract the attention of Sri Lankan authorities and in all the circumstances, the Tribunal believes it is credible that  the applicant was both photographed and questioned and told that he was to be taken to Colombo for further questioning. The Tribunal is willing to accept, as did the Department delegate that the applicant was questioned on a number of occasions by the CID regarding his involvement with the LTTE. The Tribunal is also willing to accept the applicant’s claim that he was photographed on two occasions by Sri Lankan authorities and on the last occasion as a result of having been told that he was to be taken to Colombo for questioning he decided to flee initially to Jaffna and then came to Australia by boat.

2. The Tribunal has considered the applicant’s claims that his wife was approached by Sri Lankan authorities after he came to Australia and questioned about the applicant.  The applicant claims his wife received a letter  from Sri Lankan police telling her she would be “subject to severe measures “if the applicant did not report to the police. The Tribunal has referred to the applicant’s claims and his evidence in relation to those issues elsewhere in these reasons. The applicant told the Tribunal that there had been threats to his wife on three occasions. He could remember the details. He did say that the third time was [in] August 2013 but again could not remember the details. He said the second of those visits by the CID had occurred by November 2012 after he came to Australia in August 2012. He said his wife relocated to Jaffna after that visit. He claimed his wife had been told that the authorities wanted to take the applicant to Colombo and that when she said that the applicant was not at home he claimed they threatened to take his wife for interrogation. The Department delegate had referred to the applicant’s evidence about this issue in the delegate’s record of decision. The Tribunal is prepared to accept that the applicant’s wife may have been questioned on one or two occasions about the applicant and his whereabouts .The Tribunal believes it is reasonable to believe in the context of the Tribunal’s acceptance that the applicant was questioned by the CID and threatened with being taken to Colombo that the CID would have come to the applicant’s home looking for him and spoken to the applicant’s wife. In those circumstances it is prepared to accept that there may have been a threat made to his wife that she would be interrogated, given the applicant’s disappearance. However, the Tribunal is not prepared to accept, given the lack of any significant detail provided by the applicant  and the lapse in time that his wife was threatened [in August] 2013 in relation to her husband. The applicant’s evidence was that after November 2012, his wife had relocated to Jaffna because there had been two visits by the CID after he left Sri Lanka. The Tribunal is prepared to accept that it is credible that the CID may have spoken to the applicant’s wife on two occasions shortly after he left Sri Lanka in 2012.

3. The Tribunal does not accept, given the passage of time from November 2012  and coupled with the applicant’s vague evidence that the applicant’s wife was questioned by the CID in August 2013. The Tribunal is also not prepared to accept that the applicant’s wife received the  letter from the police dated July 2014, that has been referred to earlier in these reasons. The Tribunal was provided with a English translation of the hand written letter. The Tribunal is not prepared to accept that it is a genuine letter from the Sri Lankan police. The Tribunal has referred to its concerns surrounding that letter elsewhere in these reasons. The Tribunal after having considered all the evidence believes that the applicant has sought to exaggerate his claims in an effort to strengthen his protection visa application by claiming that his wife was visited in August 2013 by the CID and also in claiming that his wife received the letter of July 2014 threatening her with “severe measures”. The Tribunal believes that it is reasonable to assume that the CID would have been looking for the applicant in late 2012, but does not believe that is credible that the CID would be continuing to look for the applicant in late 2013 or mid-2014. The Tribunal believes that it is reasonable to assume that the CID, would have assumed that the applicant had left Sri Lanka or gone into hiding and the fact that the applicant claims that the next contact after November 2012 was August 2013 and then July 2014 is generally supportive of the Tribunal’s assessment. The applicant also told the Tribunal that nothing had happened to his wife since the claimed receipt of the letter of July 2014. In all the circumstances, the Tribunal does not accept the applicant’s claims in relation to the August 2013 or July 2014 incidents.

4. The Tribunal accepts that the applicant left Sri Lanka illegally and unlawfully. The Tribunal accepts in those circumstances the applicant will almost certainly be questioned, detained and charged if he returned to Sri Lanka with offences against the Immigrants and Emigrants Act of having left Sri Lanka illegally and unlawfully. The country information in relation to that issue has been referred to elsewhere in these reasons .The Tribunal accepts in those circumstances that the applicant is a person who would come to the attention of the CID if he returned to Sri Lanka in relation to the CID’s previous interest in the applicant because of his perceived connection to the LTTE. The country information referred to earlier, indicates that returnees are questioned upon their return at the airport by investigation staff and including CID staff. The country information indicates that the authorities maintain sophisticated databases in Sri Lanka in relation to former LTTE members or supporters and people of interest also include those who promote separatist beliefs or engage in criminal activities. The  DFAT thematic report also indicates that those on watch lists are not reasonably likely to be detained, but are likely to be monitored. The difference in the applicant’s case is that the applicant will almost certainly be arrested and detained and charged in relation to having left Sri Lanka unlawfully and in those circumstances may find himself detained in jail conditions for perhaps several days or longer. As indicated the Tribunal accepts the applicant’s claims that he had been interviewed on several occasions by the CID and on the last occasion told that he was to be taken to Colombo for  questioning in relation to suspected LTTE connections.  The applicant told the Tribunal that he felt threatened when being questioned by the CID but had not been physically harmed. The Tribunal accepts that the CID may have questioned and threatened the applicant’s wife after he initially disappeared. The Tribunal accepts that the CID maintained an interest in the applicant over a protracted period in terms of the questioning of the applicant and that the threat to take the applicant to Colombo indicate that the CID was not satisfied with the applicant’s responses and suggested the CID had on going concerns about the applicant. The Tribunal accepts the applicant left Sri Lanka illegally. The Tribunal accepts the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka indicate that people at risk include those perceived to have links to the LTTE.  The Tribunal accepts country information in the DFAT country report ( page 19) which indicates that the Department has received credible reports of torture carried out by Sri Lankan security forces and that those reports have related to suspects held on criminal charges and in relation to people with suspected LTTE connections. That report also notes that torture may be used to extract confessions and refers to admissibility issues in relation to persons held under the Prevention of Terrorism Act.  The Tribunal accepts that the applicant fled Sri Lanka at a time when the CID wanted to question him further about suspected LTTE connections. The Tribunal believes in those circumstances that it is reasonable to assume that the CID will want to question the applicant if he returned and may also seek to detain the applicant in jail for a longer period ( given he fled previously to avoid questioning in Colombo) and may oppose bail in order for that questioning to occur. The Tribunal accepts the DFAT country report information ( page 20) that people held in custody for longer periods on suspicion of committing serious offences face a greater risk of torture or mistreatment because of their greater exposure to authorities. That information suggests that longer periods in custody increase the chance of torture or mistreatment. The Tribunal believes in all the circumstances that it is not a remote possibility that the applicant could be physically harmed and mistreated when he was being questioned and particularly if he remained in custody for any protracted period. The Tribunal believes in those circumstances that there is a real chance of serious harm to the applicant should he return to Sri Lanka because of the applicant’s background  and the combination of his Tamil ethnic extraction and the fact that he was of interest to the CID for suspected LTTE connections and that he left Sri Lanka illegally and unlawfully.

5. The Tribunal does not believe in those circumstances that it is a far-fetched or remote possibility that the applicant faces a real chance of serious harm should he return to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal believes that the combination of the applicant’s Tamil ethnic extraction and the CID’s interest in the applicant in relation to LTTE connections place the applicant at a real chance of serious harm. It is likely in those circumstances that the applicant could be detained and questioned for a longer period and the country information contained in the DFAT country report of February 2015 indicates that returnees are more likely to be subject to torture or mistreatment in circumstances where they have a greater exposure to authorities on the basis that they may be facing extended periods of pre-trial detention. The Tribunal believes in those circumstances that given that the applicant at the time he left Sri Lanka illegally and unlawfully was a person of interest to the CID for suspected LTTE connections that he could be held in custody for a longer period and be questioned and be at risk on that basis.

6. The Tribunal after having considered, individually and cumulatively, the applicant’s claims and the evidence and the submissions made on the applicant’s behalf  and relevant country information is satisfied that there is a real chance that if he returned to Sri Lanka the applicant would face serious harm amounting to persecution for a convention based reason. Those reasons are the combination of his Tamil ethnic extraction and his perceived imputed political opinion of being pro-LTTE together with his membership of a particular social group of Tamil people who left Sri Lanka illegally and unlawfully. The Tribunal is not satisfied that the applicant faces a real chance of serious harm solely on the basis that he is of Tamil ethnic extraction or solely because of his membership of a particular social group of Tamil people who left Sri Lanka illegally and sought asylum in a Western country. The Tribunal believes that it is the combination of factors relating to the applicant that have been discussed that places him at a real chance of serious harm if he returned to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant has a well founded fear of persecutory harm should he be returned to Sri Lanka, either now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant would avoid a real chance of serious harm by relocating to another part of Sri Lanka because of the nature and source of the harm that he fears.

   Overall Summary

7. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   James Jolliffe
   Member