1401515 (Refugee)

[2015] AATA 3692

1401515 (Refugee) [2015] AATA 3692 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401515

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:19 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 19 November 2015 at 4:38pm

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

3. The applicant appeared before the Tribunal on 10 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

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

5. The issues in this case is whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention on return to Sri Lanka, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. 

6. An extract of the relevant law is attached. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Refugee assessment

8. The applicant – a [age] year old single male from [Village 1], Batticaloa district in eastern Sri Lanka – claims to fear persecution from paramilitaries (such as the Karuna Group and Tamil Makkal Viduthalai Pulikal (TMVP)) and/or the authorities on return to Sri Lanka because of his Tamil ethnicity, membership of particular social groups[1], and imputed (pro-Liberation Tigers of Tamil Eelam (LTTE)) political opinion.

   Fear of paramilitary groups

   [1] Namely ‘young Tamil males’, ‘young Tamil males from Eastern Province’, ‘successful Tamil businessmen’, and/or ‘failed Tamil asylum seekers’ as set out in the representative’s submission to the Tribunal dated 5 November 2015.

9. The applicant claims he was targeted for extortion and threatened by members of paramilitary groups such as the TMVP and Karuna Group from 2005 until he left Sri Lanka in January 2009.  He told the Tribunal at hearing that it was in the course of running a successful [business] in Batticaloa, which he established in 2002 that his problems began.  He said that around 2005, when his business had grown substantially, members of paramilitary groups started demanding money from him, usually when he was unloading [products] at one of the five markets he distributed his products to in Batticaloa district at that time (all government-controlled areas).  These men - who arrived in military vehicles, spoke Tamil and Sinhalese fluently, wore plainclothes and were armed – usually asked for around 5,000 or 10,000 rupees, which the applicant provided.  If he did not have the money he would borrow money from a money-lender at the market.  Sometimes this took place weekly, sometimes monthly.  He never knew when they would appear.  

10. The applicant said matters worsened in August 2008 when paramilitaries shot and killed his employee who helped unload the [products] at market, a man called [Mr A].  The applicant was inside the market when it happened, heard the gunshots, and when he arrived at the scene a few minutes later saw the dead body of [Mr A] in his lorry.  He knew many people at the market (in his home town of [Village 1]) and they told him to leave immediately.  He took a three wheeler to his [relative]’s house in a village called [name] (about half an hour away), where he stayed for three months (his parents and [a relative] joined him).  There he made arrangements to leave Sri Lanka via an agent who organised his passport, visa to [country], travel to Colombo and departure from Colombo airport in early 2009.

11. The applicant said the shooting of [Mr A] was preceded by a demand that the applicant pay 10 lakhs[2] to a member of the TMVP called [Mr B] about two months prior.  When [Mr B] (accompanied by two others – one in army uniform and the other in civilian dress) first approached the applicant at market, the applicant said he could not pay that amount and asked if he could pay in instalments. They refused.  The applicant went to the police (in [Village 1]) however they refused to record the complaint, advising the applicant that it was better to pay or the problem would escalate.  The applicant said he also engaged a businessman to help mediate the matter in an attempt to get [Mr B] to reduce the amount or let him pay in instalments.  However again [Mr B] refused.  The applicant said after [Mr A] was shot a witness told him (over the telephone) that when [Mr B] had first arrived at the market (in an army jeep) he asked [Mr A] the whereabouts of the applicant, then shot him, wanting to threaten the applicant.  After some time police purportedly arrived at the scene, asked who the victim was and told bystanders to take the body away.  Asked if there was any investigation into the murder of [Mr A], the applicant replied that nothing happened, noting this type of incident occurred many times.

    [2] That is 1 million Sri Lankan rupees (AUD9,730 as at 11 November 2015,

12. The Tribunal accepts the applicant ran a successful [business] in Batticaloa in the past and given country information indicates that paramilitaries such as the Karuna Group and TMVP have been involved in extortion in the past in the east the Tribunal is willing to accept that the applicant was forced to pay money to members of the Karuna Group or TMVP on a regular basis whilst operating his business in a number of markets from 2005 until shortly before his departure from Sri Lanka in early 2009.  The Tribunal also accepts members of these groups attempted to extort 10 lakhs from him in mid-2008 and when the applicant did not pay, one of the men shot and killed the applicant’s employee – [Mr A] - at [Village 1] market in August 2008.   The Tribunal accepts the applicant hid at his [relative]’s house in [village] for three months following this incident, before departing Sri Lanka.  The delegate did not accept that [Mr A] was killed in broad daylight in a busy marketplace, given there was no clear benefit for doing so, and no investigation followed, among other concerns.  Having heard the applicant’s account of this incident at hearing, which was detailed and consistent with his written and oral evidence to the Department on this matter, the Tribunal accepts that it occurred as claimed. The Tribunal also notes that, whilst brash, the killing took place at the height of the paramilitaries’ power in the east.   

13. Given this finding about the applicant’s treatment by paramilitaries in the past in Sri Lanka, the Tribunal has considered if there is a real chance the applicant will be seriously harmed for a Convention reason by [Mr B] or other members of paramilitary groups on return to Batticaloa now or in the foreseeable future on the basis of this incident or for any other reason. 

14. At hearing the applicant said he is afraid that [Mr B] and other members of these paramilitary groups will harm him on return because he ‘cheated’ them by not paying the 10 lakhs they demanded and because they will assume he has been working in Australia and has money.  He also fears that he will be targeted for extortion if he establishes another business in the area.  He said their network is big and they continue to work with the army and intelligence.  When asked about [Mr B]’s current status, the applicant said that he is [position] for the TMVP in a number of villages in his area.  In his statutory declaration to the Department the applicant states that [Mr B] is currently the [position] of [town] urban council (at hearing the applicant said TMVP’s head office is located in [town] in Batticaloa district); that he is in a powerful position; and that this paramilitary group is still demanding money from Tamil people. He states further that because [Mr B] is in government he has power to locate people across the country.  He also states that [Mr B]’s partner in the armed group is [name] who is the [position] of the main ruling party in [a certain] district and married to a [woman] who is the sister of an army commander.   At hearing the applicant said [name] is responsible for the TMVP in [that certain] district, is [Mr B]’s friend, and when he visits [Mr B] will bring an army commander.

15. The applicant told the Tribunal that since he left Sri Lanka paramilitary members have spoken to some of his family members in Batticaloa, telling them they will look for the applicant when he returns.  Specifically, about a year after the applicant was in [Country 2] they visited the applicant’s parents’ house however they were not there (they lived at the applicant’s [relative]’s house for about a year after the shooting incident), and instead asked the neighbours about his whereabouts.  They also met the applicant’s mother once whilst she was walking on the road, took her phone and called the applicant in [Country 2].  They identified themselves as being from the TMVP, asked the applicant’s name and said they will look for him if he comes to Sri Lanka.  The last time they approached any of the applicant’s family members was around two years ago when they purportedly met the applicant’s [sibling] on the road and said that they knew that the applicant was in Australia.

16. The Tribunal found the applicant’s oral evidence about aspects of these alleged interactions with his family members in Sri Lanka to be vague and somewhat confused at times.  For example it was difficult to get a clear idea from the applicant how many times the paramilitary members had purportedly visited members of his family in Sri Lanka since his departure and the specific circumstances.  Even taking into account that he is recounting painful events and information second-hand, the Tribunal would expect his evidence to be more detailed given they are germane to his core claims.  Further, the applicant’s oral evidence to the Tribunal about receiving a threatening phone call from someone from the TMVP on one occasion whilst he was in [Country 2] is inconsistent with what he states in his statutory declaration provided to the Department, that they called him “a number of times in [Country 2]” after he had been there for about a year.  In that declaration he states also that whenever [Mr B] – and others associated with him - saw his parents they questioned them about his whereabouts whereas at the hearing he indicated that his mother was questioned by them only once and he made no mention of his father being questioned by [Mr B] or others in relation to the applicant or for any other reason.  Given these concerns the Tribunal is of the view that the applicant embellished this aspect of his claims and does not accept that Karuna Group or TMVP members have sought his whereabouts via his parents or his [sibling] in the past as claimed or that they will do so on the applicant’s return to Sri Lanka.

17. The Tribunal also notes the applicant’s oral evidence that his parents moved back to their family home a year after the shooting incident and have not been visited by paramilitaries or anyone else since, which indicates that neither the applicant or his family members are of ongoing adverse interest in relation to the shooting and/or attempt to obtain 10 lakhs (or any further money).

18. Given the Tribunal finds that [Mr B] and his associates do not have an ongoing adverse interest in the applicant, or members of his family, it finds remote the chance that they would seek to seriously harm the applicant on return to Sri Lanka in relation to an extortion attempt and murder of his employee which took place seven years ago, prior to the end of the war. 

19. Having accepted that the applicant was a successful businessman in the past, the Tribunal accepts that he may re-establish a successful business on return to Sri Lanka.  It has considered if he faces a real chance of being targeted for extortion and/or serious harm at the hands of paramilitaries and/or the authorities on this basis on return to Batticaloa, given what it accepts of the applicant’s claims of past harm and profile in this regard as set out above.  It has been submitted that the applicant faces a real chance of serious harm from paramilitary groups and/or authorities because of his membership of a particular social group of ‘successful Tamil businessmen’. When asked why he fears returning to Sri Lanka on this basis at the hearing, the applicant said his problem is that he cheated the paramilitaries in the past because he did not give them the money they had demanded. In her written submission to the Tribunal the representative refers to country information from a variety of sources as well as Canadian Refugee board decisions to argue that paramilitary groups still pose a threat and having not ceased their activities since the end of the war.  The Tribunal has had regard to this information, although notes that the reports of paramilitary activity in the east primarily focus on the period in the lead up to the end of war and immediate aftermath (i.e. 2010-2011). The representative acknowledges in her submission that there is relatively limited detailed recent information about activities of paramilitary groups, however submitted that this does not necessarily indicate that abuses no longer occur as because, she argues, these groups enjoy complicity with, and impunity from, state forces, it is likely that many abuses are not reported or publicised.  The representative submitted that the applicant’s past harm by paramilitary groups and treatment he received when he sought to make a police report are plausible and powerful indicators of the real chance that he will be subjected to such harm if returned to Sri Lanka.

20. As discussed with the applicant at the hearing, Australia’s Department of Foreign Affairs and Trade (DFAT) report that whilst some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and Tamil Makkal Viduthalai Pulikal (TMVP), have reportedly renounced paramilitary activities, they are aware of reports that they continue to be active in Sri Lanka, including in criminal activity[3].  DFAT also assesses as follows:

    ·the number of incidents of extra-judicial killing, disappearances and kidnappings for ransom has fallen considerably since the end of the conflict[4].

    ·that whilst there have been incidents of kidnapping for ransom as well as those that appear to be politically motivated, no particular group has been the target and they do not appear to be ethnically-based[5].    

    [3] DFAT Country Report Sri Lanka, 16 February 2015 at 2.35

    [4] Ibid at 4.1

    [5] Ibid at 4.10

21. The applicant said it may not happen generally and noted that the Sinhalese do not worry about whatever happens to Tamils.  He said that paramilitaries joined with the military intelligence after the new government was formed (in January 2015) and there have been shootings in his area.  Specifically a [worker] was shot by a TMVP member near his house (located near an army camp) in 2015.  He provided a Tamil Net article[6] of the incident.  The representative explained that whilst that article reports that the person who was harmed was politically active, the applicant wanted to provide it to the Tribunal because it speaks to the inactivity of the authorities when shootings take place.

    [6] [Source deleted].

22. Taking into account the information from DFAT set out above, as well as the Tribunal’s finding that although the applicant was targeted for extortion by paramilitaries in the past, and his employee was killed, this took place over seven years ago and the Tribunal does not accept his claims that there has been any follow up, specifically that his family members have been pursued, threatened or harmed by these paramilitaries since his departure from Sri Lanka.  The Tribunal accepts that the applicant was a successful businessman in the past and on return may be so again, however the Tribunal considers remote the chance that if so the Karuna Group and/or TMVP would extort him again to a level that constitutes serious harm, even if the Tribunal accepts the applicant’s claim that they will assume he has been working in Australia and has money. 

23. Given these considerations, the Tribunal is of the view that the chance the applicant would be of interest to paramilitaries such as the Karuna Group or TMVP or others or the authorities on return to Sri Lanka on account of his membership of a particular social group of ‘successful Tamil businessmen’ or any other reason in the foreseeable future and seriously harmed as a result is remote.  His fears of being persecuted on this basis are not well founded. 

    Other matters:-

24. The Tribunal notes in his statutory declaration he provided to the Department the applicant states, among other things, that during the war his family would often be harassed by the army; that there was an army camp about [number] metres from their family home; that he had to pass checkpoints going to school and travelling on the road; that at night they were afraid to put lights on because the army would see and come the next day to ask who had been there; and that they were always watching Tamils to see who was helping the LTTE.  The applicant states they are still doing this even though the war has finished.  The Tribunal is willing to accept that the applicant’s family were harassed by the army in the past, had to go through checkpoints and were afraid of being watched.  But it finds that this took it took place in the context of the war, that the situation has changed dramatically since the end of the war as discussed further below, and the applicant was not seriously harmed in any of these incidences.  As such the Tribunal does not find that the applicant faces a real chance of serious harm on the basis of being harassed by the army in the past (and before the end of the war) on return to Sri Lanka in the foreseeable future. 

25. The Tribunal also notes that in his statutory declaration provided to the Department the applicant states, among other things, that his father lost a lot of their family land which is located in Sinhalese areas after the 1990 conflict, and was left with a smaller piece of [land].  The Tribunal is willing to accept that was the case but considers it a consequence of the long-standing civil war in Sri Lanka, now ended, and does not find the applicant faces a real chance of persecution for a Convention reason because his father lost land in 1990.

    Tamil ethnicity

26. It is submitted that if returned to Sri Lanka, the applicant will be persecuted because of his Tamil ethnicity and that his Tamil ethnicity is one of the reasons why he will be perceived as an LTTE supporter and/or against the pro-government paramilitary groups. 

27. For the following reasons, the Tribunal finds the applicant’s claim to fear harm on return to Sri Lanka because of his Tamil ethnicity is not well-founded. The Tribunal accepts that Tamils in the past have experienced widespread discrimination and harm, particularly during the conflict between the LTTE and Sri Lankan government.  However, the Tribunal does not accept that simply being a Tamil or a young Tamil male (as submitted) gives a rise to a well-founded fear of persecution from the authorities in Sri Lanka.  The Tribunal makes this finding on the basis of independent sources indicating that it would no longer be assumed that all Tamils face a real chance of suffering serious or significant harm solely on account of their Tamil ethnicity.[7] 

    [7] Department of Foreign Affairs and Trade 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October; Department of Foreign Affairs and Trade 2015 DFAT Country Report 16 February 2015; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August; UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December.

1. The Tribunal discussed this information with the applicant at the hearing.  He said that he has given evidence about his problems; he does not worry about others.   He also referred to a number of articles he has provided to his representative about the ongoing situation for people like himself in Sri Lanka (the key points of which the representative indicated she addressed in her written submission to the Tribunal).

2. The Tribunal also noted that the independent sources indicated that the absence of any anti-government activity before or after leaving Sri Lanka will mean that any enquiries made by the Sri Lankan authorities upon a person’s return is not likely to result in a concern that person will be a security risk[8]. Specifically the Tribunal drew the applicant’s attention to the UK Home Office’s assessment that since the end of the war in 2009, the focus of the Sri Lankan government’s concern has changed and they are now interested in are those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka.[9] 

   Young Tamil male from the East

   [8] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August

   [9] UK Home Office Operation 2014 Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5-7

3. It has also been submitted on the applicant’s behalf that he faces a real chance of persecution on the basis of imputed political opinion because of his profile as a young Tamil male from the east and membership of a particular social group of ‘young Tamil males from Eastern Province’.   

4. The Tribunal accepts that the applicant originates from Batticaloa district in the eastern province of Sri Lanka.  However, the Tribunal notes UNHCR (2012) Guidelines state that originating from an area that was previously controlled by the LTTE does not in itself result in a need for protection:

   At the height of its influence in Sri Lanka in 2000-2001, the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka. Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. Originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol.[10]

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

5. Further, the Tribunal notes DFAT’s assessment in its October 2014 Thematic report is that because of the pervasiveness of LTTE control in the north and east during the civil conflict, most Tamils from these areas are likely to have paid taxes to or provided a low-level of material support to the LTTE.  The applicant told the Tribunal that he was not an LTTE member and did not indicate at the hearing that he had any serious problems in the past in Sri Lanka form the authorities or anyone else as an LTTE suspect.  The Tribunal finds that the applicant did not provide support to the LTTE in the past in Sri Lanka.  Originating from the east and being Tamil, he may be perceived to have provided a low-level of support to the LTTE and may be monitored by the authorities.  Nonetheless, DFAT assess that those Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at low risk of being detained or prosecuted.[11] 

   [11] 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October at 2.27

6. Based on this country information from DFAT and what it accepts of the applicant’s profile and past experiences in Sri Lanka, the Tribunal finds remote the chance the applicant would be seriously harmed on return by the authorities or anyone else on the basis of his membership of a particular social group of ‘young Tamil males from Eastern Province’.   His fears of being persecuted on this basis are not well founded.

   Failed asylum seeker and imputation of a pro-LTTE political opinion

7. In his statutory declaration to the Department the applicant claims to fear harm from the authorities on the basis of ‘having fled to Australia illegally...either upon return or afterwards through being pursued at my home’.   At the Tribunal hearing he explained that he fears being questioned at the airport on return because he did not come to Australia on a ‘legal’ passport (which he subsequently lost in [Country 2]).  In his statutory declaration he provided to the Tribunal the applicant states that anyone who arrives at the airport without a passport will be asked many questions from the authorities.  He told the Tribunal that he understands – from newspaper articles - that the Australian intelligence and Sri Lankan intelligence authorities share information and is therefore fearful.   He said that at the airport he may either be arrested or put in gaol or the authorities may let him go and pass on the information to the army or the paramilitary groups who could come for him later. He also states that he knows this happened to a couple of people from his area.  At the Tribunal hearing the representative submitted an ABC article[12] she received from the applicant, noting that he is aware that the Australian government liaises at different times with the Sri Lankan government about asylum seekers and that as such he is anxious about what would be known about his (protection) claims when he returns. 

   [12] ABC, AFP providing support to Sri Lankan government department accused of torture, 4 August 2015; ‘Photographer abducted by CID; blindfolded, burnt and raped’; and ‘Human rights organisation dispute Sri Lanka’s denial of torture’ 3 August 2015, .abc.net.au/news

8. Whilst the applicant made suggestions that he left Sri Lanka illegally, his evidence was vague on this matter and the Tribunal notes that he did acknowledge departing Sri Lanka using a passport that was issued in his name and with a valid visa.  On this basis the Tribunal finds that the applicant departed Sri Lanka legally and even though he came to Australia by boat, he did so from [Country 2]. Therefore the Tribunal finds his fears of being harmed by the authorities on return ‘having fled to Australia illegally...either upon return or afterwards....’ are not well founded.

9. It is submitted that there is a real chance the applicant would be seriously harmed on return to Sri Lanka on account of his membership of a particular social group of ‘failed Tamil asylum seekers.’  It is argued that he faces harm because he will be imputed with a political opinion in support of the LTTE and/or against other pro-government paramilitary groups on this basis.  To support her contentions in this regard, the representative has referenced a number of reports about the mistreatment (including torture) of failed asylum seekers in her written submission to the Tribunal, among other things, as well as extracts from other tribunal decisions (in Canada and Australia).  She also refers to reports[13] about the human rights situation for Tamils in post-war Sri Lanka and articles[14] about the precarious political situation in Sri Lanka despite the election of a new president in January 2015.   

   [13] Citing for example the US Department of State, 2014 Report on Human Rights Practices: Sri Lanka; Yasmin Sooka, The Bar Human Rights Committee of England and Wales (BHRC) and the International Truth & Justice Project, Sri Lanka, An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009 – 2014, 2014

   [14] For example The Guardian, The Guardian View on the End of the Rajapaksa Era in Sri Lanka’, 12 January 2015

10. The Tribunal accepts that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka and the Tribunal also accepts that he will not return to Sri Lanka voluntarily.

11. DFAT assesses that returnees to Sri Lanka are treated according to standard procedures, regardless of their race or religion.  DFAT also report that they are not subject to mistreatment during their processing at the airport[15].  Further, as discussed with the applicant at the hearing, the UK Home Office reports that Sri Lanka has an extensive intelligence system shared by the security forces and immigration officials and that its security policy has become increasingly sophisticated since 2009 and is based on intelligence and the comprehensive surveillance of its Tamil citizens as well as monitoring of the Tamil diaspora[16]. That Guidance notes that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[17]  

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

    [16] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.2

    [17] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5

12. When this information was discussed with the applicant at hearing, he said that he is telling the Tribunal about the problems he had and what would happen to him if he returns, not others.  He said that a person from his village was shot and no action was taken and referred to the TamilNet article referenced earlier in the decision record.  He questioned in such an environment how he can trust the government if he goes back.  He also referred to another TamilNet article[18] (which the representative submitted) about 16 Tamils in Batticaloa arrested within the last 100 days (the date of the article is 3 May 2015) from the Colombo airport.  In the statutory declaration provided to the Tribunal[19] the applicant states that sometime after the new government was elected, paramilitaries shot a man in point-blank range in his house; that this man had been helping some people file a case against the paramilitaries having taken their land; that when the paramilitary told him to stop helping those people he told them it was only right; and they later shot him dead in a house about 300 metres from the applicant’s family’s house.  He states further that even though there were protests, the police and government turned a blind eye and did nothing.

    [18] TamilNet, 16 Batticaloa Tamils arrested within last 100 days at Colombo airport, 3 May 2015

    [19] Dated 30 October 2015

13. The Tribunal has had regard to these submissions and the applicant’s concerns about what might happen to him on return as a failed asylum seeker, including ongoing impunity.   Nonetheless, the Tribunal prefers the advice from DFAT and the UK Home office, as set out above, that returnees are treated according to standard procedures, regardless of race (or religion) and that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk[20], as mentioned. 

    [20] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5

14. The Tribunal accepts that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad and that given he is a Tamil speaker, he may also face questioning about any links he may have with the LTTE.    At hearing the applicant told the Tribunal that neither he nor his family had any past involvement with the LTTE.  In such circumstances the Tribunal considers that such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant was not a member or supporter of the LTTE nor suspected of such.  It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

15. The Tribunal accepts that when the applicant returns to his home in Batticaloa, his arrival will be noted and he may be questioned by the Sri Lankan authorities.  However given the Tribunal’s findings above, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis that he is a Tamil who has sought asylum in Australia.  Nor does it accept, given what it accepts of the applicant’s profile, that the authorities will pass on information to the army or paramilitary groups who will come for him later (in his home area), as submitted.  

    UNHCR Registration

16. It has been submitted on the applicant’s behalf that his fears of persecution on return to Sri Lanka are also based on being imputed with a political opinion in support of the LTTE and/or against pro-government paramilitary groups on account of, among other things, his registration with the UNHCR in [Country 2].  At hearing the representative submitted that the government, who now have quite sophisticated intelligence networks, is likely to obtain information that the applicant registered with UNCHR (and was found to be a refugee in 2009) and surmise that he said disparaging comments about the Sri Lankan government.  She contends that, given country information about how the Sri Lankan government treats returnees (as submitted in relation to the argument that he fears serious harm as a failed asylum seeker) the applicant faces an increased risk on return. 

17. The Tribunal accepts that the applicant registered with UNHCR on arrival in [Country 2] in 2009 and was found to be a refugee at that time.  As set out above, the Tribunal accepts that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad – including in [Country 2] - and that given he is a Tamil speaker, he may also face questioning about any links he may have with the LTTE.   At hearing the applicant told the Tribunal that neither he nor his family had any past involvement with the LTTE.  In such circumstances the Tribunal considers that such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant was not a member or supporter of the LTTE nor suspected of such.  It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

    Conclusion – Refugee grounds

18. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection assessment

20. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

21. The representative submits that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he will suffer significant harm in the form of arbitrary deprivation of life; and/or torture; and/or cruel and inhuman treatment or punishment; and/or degrading treatment or punishment.  

22. The Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnicity, his actual or imputed political opinion, his membership of a particular social group of ‘young Tamil males’, or ‘young Tamil males from Eastern Province’ or ‘successful Tamil businessmen’, the fact that he has sought asylum in Australia, or registered with the UNHCR in [Country 2].  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[21]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    [21] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

23. For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSION

24. 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).

25. 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).

26. 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

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

    Nicole Burns
    Member

    
    

    Attachment – Summary of 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.

    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.

    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’).

    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.