1401570 (Refugee)

[2015] AATA 3811

1401570 (Refugee) [2015] AATA 3811 (2 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401570

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:2 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2015 at 11:23am

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] November 2012 and the delegate refused to grant the visa [in] January 2014.

3. The applicant appeared (via video link from [town]) before the Tribunal on 5 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 (via telephone).

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.  An extract of the relevant law is attached. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and nationality

7. It is not in dispute that the applicant is a Sri Lankan national and the delegate’s decision records that he has provided to the Department his original national identity card. The Tribunal is satisfied that the applicant is a national of Sri Lanka and has assessed his protection claims accordingly. 

8. The Tribunal accepts based on the applicant’s identity card and confirmed at hearing that the applicant is a Tamil from [name] Division, [District 1], North Eastern Province.  The applicant’s parents and siblings live in Sri Lanka: his parents and [siblings] currently live in [District 1], and his [other siblings] live in Jaffna, Northern Province. 

9. The applicant departed Sri Lanka by boat in June 2012.  He was living in [District 2] with a friend prior to his departure, studying at high school.

   Refugee assessment

10. It has been submitted that the applicant fears persecution from the authorities on return to Sri Lanka for reasons of his race (Tamil from the Northern Province), his imputed political opinion (perceived support for the Tamil National Alliance (TNA) and the Liberation Tigers of Tamil Eelam (LTTE)), and his membership of a particular social group (‘failed asylum seekers in Sri Lanka’). The Tribunal has also considered if the applicant has a well-founded fear of persecution on the basis of his illegal departure from Sri Lanka.

11. The applicant’s protection claims have been set out in his oral evidence to the Tribunal as well as the representative’s written submission[1] to the Tribunal which contains references to country information about the situation in Sri Lanka generally and in relation to the applicant’s specific protection claims as well as domestic and international case law.  The Tribunal has also had regard to the applicant’s evidence contained in a statutory declaration[2] he provided to the Department in support of the visa application and supporting documents where relevant.

    [1] Dated 29 October 2015

    [2] Dated 23 November 2012

    Imputed political opinion        

12. It is submitted that the applicant fears he will be imputed with a pro-LTTE and pro-TNA political opinion on return to Sri Lanka and is at risk of serious harm on that basis because of his Tamil race; because his brother ([Mr A]) is an [official] for the TNA in [District 1]; because the applicant assisted [Mr A]’s political campaign in 2011; and because the applicant’s other brother ([Mr B]) was an LTTE combatant from 2008 and was detained by the government from 2009 to 2012, discussed in more detail below. 

    Brother’s LTTE involvement

13. The applicant told the Tribunal at hearing that one of his [brothers] – [Mr B] – was forcibly recruited by the LTTE in 2008 from their family home in [District 1].  [Mr B] fought for the LTTE against the government in Kilinochchi district, near the border.  He surrendered to the government forces sometime in May 2009 and was detained in a camp in [town], [District 1] until February 2011 when the army released him.  The applicant’s brother told the applicant he was beaten badly and tied up during his detention. He became mentally unwell, which is why the army released him.  He continues to have mental health issues, including spending periods in hospital and being medicated, and as such lives at home with his parents (in [District 1]) and does not work. 

14. In his statutory declaration provided to the Department the applicant states that he believes that the government suspect him of having assisted the LTTE because [Mr B] was in the LTTE, and actually fought with the LTTE.

15. The Tribunal accepts that the applicant’s brother, [Mr B], was an LTTE member from 2008 to 2009 and was detained by the army following the end of the war, until February 2011. It accepts he was beaten and tied up by the army during this time. The applicant’s evidence before the Department and Tribunal has been reasonably consistent and detailed in this respect and the Tribunal notes it was common practice for the LTTE to recruit at least one member of each Tamil family living in LTTE-controlled areas during this time.  However for the following reasons the Tribunal does not find that the applicant faces a real chance of serious harm from the authorities on account of being imputed with a pro-LTTE political opinion because of [Mr B]’s involvement with the LTTE – including as a combatant - in the past. 

16. First, when asked at the hearing the applicant said that his brother was released by the army in February 2011 and has not experienced any further problems from the authorities since then.  The applicant attributed their lack of enquiry to the fact that his brother has mental health issues. He said in the eyes of the Sri Lankan authorities he is a broken man, which is why he is of no interest to them. The applicant was unable to state if his brother had been diagnosed with a specific mental illness, but noted he had spent time in hospital before.  After the hearing the applicant provided a copy of a diagnosis report dated [in] February 2015 from a consultant psychiatrist at [a] Hospital which states that [Mr B] has been diagnosed with ‘Complex Post traumatic stress disorder’. In her submission accompanying the report the representative states that the diagnosis (of PTSD) suggests the strong possibility that [Mr B]’s illness may be the result of torture suffered whilst he was detained after the end of the war and this knowledge has heightened the applicant’s fear that the same thing might happen to him on return.   Whilst the Tribunal is willing to accept that [Mr B] may have a mental illness of some description, possibly caused by ill-treatment he experienced in detention, it is of the view that if the authorities considered [Mr B] was of ongoing concern in relation to his past LTTE involvement and/or status, they would have continued to monitor him at the very least, regardless of his mental health status.  Second, the applicant did not indicate in his oral evidence that he experienced any problems from the authorities when in Sri Lanka on account of his brother’s LTTE membership, or that any of his family members who remain in Sri Lanka have experienced any problems from the Sri Lankan authorities on account of [Mr B]’s involvement with the LTTE in 2008 and 2009, in the period leading up to the end of the war.

17. A lengthy written submission has been provided by the representative on this matter, which includes country information, case law and other tribunal decisions where relevant about the concern what might happen to Tamils imputed with a pro-LTTE political opinion.  In it she  submits, among other things, that given the prevailing climate of impunity and paranoia, perceptions of connections to the LTTE or support for Tamil nationalist aspirations may arise even based upon peripheral or insubstantial ties, or upon mere allegations (without any greater substance or need for proof).  Reports attesting to the government’s intolerance of even minor actions of dissent are referenced from a variety of sources. 

18. The Tribunal has had regard to this submission and relevant country information and case law referenced in that submission, as well as the applicant’s concerns about being imputed with a pro-LTTE political opinion on account of his brother’s role with the LTTE in the past and associated risks.  However, whilst the Tribunal accepts that the applicant’s brother was a member of the LTTE and detained after the war finished until February 2011, further time has passed since the events in question and the situation in Sri Lanka has changed dramatically since the end of the war (in May 2009).  Specifically, as discussed with the applicant at the hearing, country information indicates that since the end of the war the focus of the Sri Lanka government’s concern has changed and they are now interested in 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.[3]  Similarly, DFAT assesses that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, may be monitored by Sri Lankan authorities but are at a low risk of being detained or prosecuted[4]. 

    [3] UK Home Office Operation Country Information and Guidance Report about Tamil Separatism in Sri Lanka, 28 August 2014 at 1.3.7

    [4] 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October at 2.27

19. For these reasons the Tribunal finds remote the chance the applicant would be seriously harmed on return to Sri Lanka by the authorities on account of his brother’s past involvement with the LTTE.  His fear of persecution on this basis is not well founded. 

20. At the Tribunal hearing the applicant said prior to joining the TNA his other brother, [Mr A], worked for the LTTE in one on of their offices in [District 1], distributing [items].  He was not an actual member of the LTTE, but worked for them in part of an area controlled by the LTTE from around 2004/05 to 2007/2008.  The Tribunal accepts that was the case however based on the applicant’s oral evidence that [Mr A] experienced no problems from the authorities in Sri Lanka in the past as a result (nor the applicant or any family members), even taking into account the applicant’s explanation that they did not know, the Tribunal finds remote the chance that the applicant would be imputed with a pro-LTTE political opinion and seriously harmed by the authorities because his brother worked for the LTTE prior to the end of the war in an area controlled by the LTTE at the time.

    Other matters:-

21. At hearing the applicant said that he and his family lived in an internally displaced persons (IDP) camp  - [name] - for one to one and a half years after the war and during that time the army came and asked if he had been in the LTTE.  The Tribunal accepts that was the case but does not find the applicant was of any particularly adverse interest to the authorities over the general interest in young Tamil males during this period.  On his own oral evidence he was not harmed during that period and was resettled to [District 1] along with his family members once his area had been checked and cleared and on this basis the Tribunal finds he was not of ongoing adverse interest by the authorities as an LTTE suspect or for any other reason.  The Tribunal therefore finds remote the chance the applicant would be imputed with a pro-LTTE political opinion, and seriously harmed by the authorities as a result, because he and his family were interned in an IDP camp for one to one and a half year period after the war, in the foreseeable future.

    Brother’s membership of the TNA

22. At hearing the applicant said the main reason he left Sri Lanka in mid-2012 was because the Criminal Investigation Department (CID) had started to take an interest in him.  That is because, he stated, they suspected him of being an LTTE member or supporter and because he helped his brother – [Mr A] – during an election campaign to become a local government member for the TNA in [District 1] in early 2011.  He told the Tribunal about a month before the election – which was sometime in February 2011 (he was unable to recall the exact date) – he started canvassing people door-to-door, distributing pamphlets, and putting up posters in public buildings and shops.  The applicant said during that time he was told on two occasions by people he thinks were CID not to put up posters in a particular area.  He was threatened that he would be in trouble if he did so.   He told the Tribunal that he did nonetheless and did not experience any trouble.  However after the election he started having problems.  Specifically in May 2011 the applicant told the Tribunal that one morning about five or six CID officers came to his home, took him to an army camp in the next village, and questioned him for about half an hour to an hour before releasing him.  They purportedly questioned why he put up posters, accused him of being involved with the LTTE, and said they would take him to Colombo for further investigations.  When asked, the applicant said he was not physically hurt, but the CID pretended to hit him and threatened to shoot him if he did not tell the truth. 

23. The applicant told the Tribunal that the CID came to his house two or three times after this incident in May 2011 to enquire about him and told him he must not go anywhere.  Given their attention, he decided to move to [District 2] in July 2011 and continued his high school studies there, staying with a friend.  He said when he was in [District 2] CID officers came his house in [District 1] two to three times looking for him.  Then, in April 2012, the applicant said the CID came to his friend’s house in [District 2] and again a week before he departed Sri Lanka, took him to a house in a bush area, and kept him there for about an hour each time.  During that time they asked him why he had moved to [District 2] without informing them and accused him of being linked to the LTTE.  They also asked him why he worked for the TNA. 

24. The applicant told the Tribunal that since he has been in Australia the CID has visited his parents looking for him four or five times, the last time in May 2014.  They purportedly told his mother to bring him to them as soon as he returns from overseas. 

25. To support his claims of his brother’s political profile, the applicant provided to the Department a copy of a card naming his brother (‘[Mr A]’) for ‘[District 1]’ issued [in] January 2012; a candidate’s election card for the ‘[election]’ 2011; and a party member card [name], [District 1] District, [District 1] [name] dated [in] February 2011. 

26. The Tribunal accepts the applicant’s brother, [Mr A], is [an official] representing the TNA in [District 1] and that he contested a local election in early 2011 in that district.  The Tribunal has some concerns about the applicant’s claims to have assisted his brother in these elections, because his oral evidence was vague at times, for example he did not know the actual date of the election (only the year and month).  Despite these concerns, the Tribunal is willing to accept that the applicant may have helped his brother in the lead up to the election in 2011 by putting up posters, canvassing votes, and handing out pamphlets and in that role may have received some verbal threats from political opponents, primarily to dissuade him in his campaign efforts for the TNA.  The Tribunal notes that nonetheless, on the applicant’s own evidence at hearing, he put up the posters anyway and did not experience any problems as a result.  Apart from the applicant’s own speculation, there is nothing to suggest the people who threatened him not to put up posters were CID members and the Tribunal does not accept that was the case.

27. The Tribunal has a number of concerns about the applicant’s claims to have experienced problems from the CID before and after the election for the following reasons and as such does not accept his claims in this regard. 

28. First, the applicant’s oral evidence to the Tribunal about the visits from the CID after the election differed in some respects to his statutory declaration provided to the Department.  That is in his statutory declaration the applicant states that the CID started investigating him in 2011, took him from his house, and came once a week.  However the applicant told the Tribunal that after the CID took him for questioning in May 2011, they visited him at his house in [District 1] two or three times before he moved to [District 2], two to three times after he moved to [District 2] and visited his friend’s house in [District 2] twice, both times taking him to a bush area and questioning him for about half an hour (not once a week).  

29. Second, it is unclear to the Tribunal why the applicant would be of particular interest to the CID, not his brother.  At hearing the applicant said the CID was interested in him particularly because he helped his brother with the election (in February 2011) and they suspect him of being involved with the LTTE.  When asked if his brother has experienced any problems from the authorities because he is a TNA member, or for any other reasons, the applicant’s response was somewhat confused: initially he replied “Yes” and said two weeks prior (to the hearing) the CID had visited his parents’ house looking for [Mr A] – they did not give a reason – and told their mother to tell him to go to their place.  His mother told the CID that [Mr A] was in [District 1], operating within the TNA. The applicant was not sure if the CID then found his brother at the TNA office (where he said he often sleeps).  The applicant said because his brother is a TNA member the authorities would not go there (i.e. to the TNA office) to take him but would wait and take him from his home.  When asked where they wanted to take him and why the applicant replied that some time ago the CID went to his parents’ house to enquire about the applicant and one time last year (2014) when he was walking on the road they purportedly asked [Mr A] why he let the applicant escape.  Later in the hearing when the Tribunal asked again if [Mr A] had experienced any problems from the authorities because of his involvement with the TNA, the applicant replied ‘no’ because he is operating with the TNA.   The Tribunal is not persuaded by this explanation and is of the view that if the authorities had serious concerns about the applicant’s brother (or the applicant’s support to his brother’s past election campaign) the fact that he is a TNA member would not prevent them from making enquiries, at the very least.

30. In her written submission to the Tribunal the representative asserts the fact the authorities did not persist in their pursuit of the applicant’s brothers (including [Mr A]) does not indicate the risk to the applicant has diminished.  She submits that the applicant was still imputed to be involved with the TNA and LTTE by his association with his brothers ([Mr A and Mr B]) and his own actions during the 2011 council elections in [District 1].  That is, she argues, the applicant’s profile remained that of a suspected member of a Tamil militia and political party, regardless of whether this was true.

1. Third, the applicant told the Tribunal that none of his family members in Sri Lanka, including those who reside in [District 1], have experienced any problems from the authorities in relation to their purported interest in the applicant and/or because of [Mr A]’s status as a TNA politician.  The applicant told the Tribunal that [one brother] who works for private organisation that helps [people] in [District 1] has not experienced any problems from the CID in relation to the applicant.  He told the Tribunal that when the CID visited his mother they asked about [this brother] and when she said where he worked they said that was fine.  The applicant was vague about when this happened; stating he thinks it was around the time the CID took the applicant away to enquire, in May 2011.  As mentioned, he said that the authorities have made no enquiries with his other brother – [Mr B] – since his release from detention in February 2011 because he is mentally unwell.  In relation to his other brother – [Mr C] - who works for a [company] in [town], the applicant said when the CID was enquiring about the applicant with his mother they told her [Mr C] needed to register in an army camp and asked where he was, but since then they have had no further interest in him.  The applicant told the Tribunal that [Mr C] travels all over the country for work and in this capacity does not experience any problems from the army or anyone else.

2. For these reasons above the Tribunal does not accept that the applicant was of adverse interest to the CID either before or after the election in February 2011.

3. In summary and for the reasons set out above the Tribunal accepts that the applicant helped his brother in the lead up to the 2011 local election in [District 1] in the manner described and that his brother is a TNA local [official] in [District 1].  It accepts that in this capacity the applicant may have been told by some men not to put up posters in a particular area, for example, however for the reasons above the Tribunal does not accept that they were CID officers.  Further the Tribunal does not accept the applicant’s claims to have been questioned and detained by the CID at an army camp in May 2011 nor that he was visited by the CID on two or three occasions at his home in [District 1] afterward when he still resided there, or two or three times at his family home in [District 1] after he moved to [District 2], or twice in [District 2] before he departed Sri Lanka.  Whilst the Tribunal accepts that the applicant may have received verbal threats from opposition supporters in the past, this largely took place in the context of local elections in 2011, over four years ago and the Tribunal does not accept that there have been any follow up incidences, including in relation to family members.  Given these considerations, the Tribunal finds the chance the applicant will be seriously harmed by CID officers or anyone else on account of his support to his brother’s election campaign in 2011 and more broadly the fact that his brother is a local TNA [official], on return to Sri Lanka now or in the reasonably foreseeable future on imputed political opinion grounds or any other Convention reason to be remote.  His fear of persecution on this basis is not well founded.

4. Given this finding, it follows that the Tribunal also does not accept the applicant’s claims that his parents have been visited by the CID in relation to the applicant five times since he left Sri Lanka.

5. The applicant may vote for the TNA on return to Sri Lanka, and he may help support his brother if he runs again in the future, around election time, as he did in the past.  However, given the Tribunal’s findings that although the applicant was threatened in the past when he was involved to deter him from putting up posters in certain areas, he was never seriously harmed, and the Tribunal has not accepted that he was threatened by CID officers.  The Tribunal therefore finds remote the chance that the applicant would be seriously harmed on the basis of his support for the TNA on return to Sri Lanka.  His fear of harm on this basis is not well founded.  Nor does the Tribunal find that the applicant would be imputed with a pro-LTTE political opinion on this basis on return to Sri Lanka now or in the reasonably foreseeable future. 

6. The representative submitted at hearing that given the illegal methods of extracting information, the modus operandi of the authorities is to keep harassing and threatening people until they get them to confess an association with the LTTE to punish them. Even though country information indicates that things have changed significantly since the end of the war, they also know the government of Sri Lanka have stated that they had demilitarised the northern and eastern provinces yet there is constant information that the army keeps visiting people’s houses asking them to register, which suggests they are not getting the full picture about the current situation in Sri Lanka.  Whilst that may be the case to a certain degree, for the reasons above the Tribunal does not accept the applicant’s claims that the CID took an adverse interest in him for any reason in the past in Sri Lanka and his fears of being harmed by CID or the authorities on return is therefore remote.

7. At the Tribunal hearing the applicant provided an untranslated article in Tamil purportedly about the shooting of three people in a neighbouring village in April 2014.  The applicant told the Tribunal that the government claimed that a new LTTE and Prabhakaran[5] was emerging and visited a number of places to enquire after the incident.  After the hearing the representative provided an article from BBC News Asia[6] reporting on the same incident.  She states that the applicant claims this incident occurred in a village neighbouring his and afterwards the army stepped up enquiries in his own village.  Further, the applicant claims (as he did at the hearing) that just after this incident his [relative]’s husband was taken by the authorities and imprisoned; that he believes his [relative]’s husband remains in prison in [town] and that as his [relative]’s husband had visible wounds which he believes made him a target of suspicion because of the suggestion that they were attained while fighting for the LTTE.  The representative notes UNHCR’s observations in 2005 that Tamil asylum seekers with scars on return may be prone to adverse identification by the security forces and taken for rigorous questioning and potential ill-treatment. It is submitted further that the information supports the notion that the Sri Lankan authorities continue to be vigilant and inclined to destroy what they believe is a resurgent LTTE; that the alleged suspects were not captured, charged and tried, but gunned down in a manner reminiscent of a war crime; and that this suggest that information – such as that from DFAT – that the situation in Sri Lanka had returned to normal and those with former associations with the LTTE are no longer at risk, may not be entirely reliable.

   Tamil ethnicity

   [5] The late leader of the LTTE

   [6] [Information deleted]

8. It has been submitted that the applicant fears persecution on return to Sri Lanka as a Tamil from the Northern Province.  It is also submitted that he will be imputed with a pro-LTTE political opinion on this basis and is at risk of serious harm on return. 

9. In her written submission to the Tribunal the representative contends, among other things, that Tamils (and perceived supporters of the LTTE) continue to suffer violence and discrimination in contemporary Sri Lanka, referring to country information from a variety of sources, and that these conditions of marginalisation and persecution are likely to persist for the reasonably foreseeable future (despite the election of a new president in January 2015). She submits that this information indicates, among other things, that:

   ·Tamils are frequently singled out for abuse by the state and its allies (including armed paramilitary groups) particularly (but not exclusively) on the pretext of alleged ties to or support for the LTTE.

   ·Tamils have been arbitrarily detained or otherwise ‘disappeared’, and there are frequent reports of forcible abductions by ‘white vans’, manned by soldiers or supporters of the government.[7]

   ·Since the end of the civil war, Tamils have been socially and economically marginalised.  Tamil lands have been confiscated, religious and cultural rights have been restricted and the Tamil population have been denied access of avenues to redress, allowing agents of Sri Lanka’s security services to carry out abuses with impunity. 

   ·Those racial and political elements of persecution in Sri Lanka are inseparable.  Tamils suffer persecution because they are frequently perceived as supporters of the LTTE or as opponents of the government.  Racial identity is viewed as a marker of political allegiance, with acts or relationships that would be otherwise regarded as innocuous gaining greater significance owing to pre-existing Tamil sentiment.  Tamil ethnic identities may hence serve to instigate persecution for reasons of both race and political opinion. 

   ·That given the prevailing climate of impunity and paranoia in Sri Lanka, perceptions of connection with the LTTE or support for Tamil national approaches may arise even based on peripheral or insubstantial ties or upon mere allegations.

   ·Continued military involvement in Tamil-majority areas is a concern, with some analysts describing them as ‘the de facto and unchecked power in the north’[8].

   [7] Referring to Charles Haviland, ‘Sri Lanka’s sinister white van abductions’, BBC News, 14 March 2012

   [8] International Crisis Group, Sri Lanka’s Potemkin Peace: Democracy Under Fire, 13 November 2013, Asia Report No. 253 p.5

10. The Tribunal has had regard to these submissions, including relevant country information, and acknowledges the representative’s concerns about lack of progress towards meaningful reconciliation for Tamils in post-war Sri Lanka, and the continued suspicion of Tamils by the authorities who remain concerned about a resurgence of Tamil militancy, ongoing disappearances and marginalisation of minorities and other concerns articulated.   Nonetheless, for reasons above the Tribunal has not accepted that the applicant faces a real chance of persecution on return to Sri Lanka by the authorities on account of an imputed (pro-LTTE) political opinion on the basis of his brothers’ involvement with the LTTE in the past, his brother’s TNA membership, or for any other reason.  For reasons above the Tribunal does not accept that the applicant was a serious LTTE suspect in the past in Sri Lanka and the applicant told the Tribunal that he has never been involved with the LTTE.  Given what the Tribunal accepts of the applicant’s profile and past experiences in Sri Lanka, 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. 

11. 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 form the north 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.[9] 

    [9] 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 Sri Lanka 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

12. The Tribunal also notes that – as mentioned - the independent sources indicate 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,[10] as discussed with the applicant at the hearing.  The applicant said ‘they’ will not be doing anything publicly or in the open but there are things going on in the background and if he returns they will say he is LTTE. 

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

13. In her written submission about this matter the representative notes that UNHCR in their 2012 eligibility guidelines caution that their list of profiles identified (of those still considered at risk) is not exhaustive. She also provided country information from other sources to discuss and respond to DFAT’s findings with regard to contemporary conditions in Sri Lanka.

14. The Tribunal has had regard to these submissions.  Having regard to the evidence before it, the Tribunal accepts that Tamils in Sri Lanka faced a degree of harassment, discrimination and in some cases persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity. However, in light of the end of the war in May 2009 and the country information cited above that assess that being of Tamil ethnicity does not on its own warrant international protection, the Tribunal finds that the applicant does not face a real chance of suffering serious harm solely on account of his Tamil ethnicity from the Sri Lankan authorities or anyone else.  The applicant’s fear of persecution on this basis is not well founded.

15. The Tribunal has considered if the applicant faces any particular risk because he is a young Tamil male who originates from the north, as submitted.  The Tribunal accepts that the applicant originates from the Northern Province in Sri Lanka, parts of which used to be controlled by the LTTE until the end of the war in May 2009.  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.[11]

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

16. Further, the Tribunal notes Australia’s Department of Foreign Affairs and Trade’s (DFAT) 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.  However, 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.[12] The applicant told the Tribunal that he was not an LTTE member and for reasons set out above the Tribunal is not satisfied that the applicant was of particular adverse interest to the CID (or the authorities) in the past as a serious LTTE suspect.  The Tribunal is not satisfied that the applicant’s profile and circumstances are such as to result in a real chance of being persecuted because of his imputed political opinion on account of being a young Tamil male who originates from the north if he were to return to Sri Lanka, now or in the reasonably foreseeable future.

    [12] 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October at 2.27

17. Taking into account the above considerations the Tribunal does not find that the applicant faces a real chance of serious harm on return to Sri Lanka on the basis of his imputed (pro-LTTE) political opinion for any of the reasons submitted separately or in combination.  His fears of persecution in this basis are not well founded.

    Failed asylum seeker

18. It is submitted that there is a real chance the applicant would be seriously harmed on return to Sri Lanka on account of his status as a failed asylum seeker.  In particular, the representative has submitted that he is a member of a particular social group of ‘failed asylum seekers’ in Sri Lanka and faces persecution on this basis on return.

19. The representative has provided a lengthy submission to the Tribunal on this matter, referring to country information and case law where relevant.  She submits, among other things, that Sri Lankans who apply for asylum abroad may upon their return be imputed with dissident or other pro-LTTE views by reason of their attempts to gain protection in other nations and that other sources raise doubts about the accuracy of DFAT’s report on failed asylum seekers (discussed below). In that regard the Tribunal has been referred in particular to reports by the Immigration and Refugee Board of Canada (IRB) and the Bar Human Rights Committee of England and Wales and the International Truth and Justice Project’s Report, as well as other sources cited in those submissions. 

20. The representative identifies specific concerns with reliance on DFAT’s advice (in relation to failed asylum seekers and in some instances of relevance to returnees who have departed Sri Lanka illegally, discussed later in the decision record) as follows:

    ·DFAT’s procedures for gathering evidence as to the treatment of failed asylum seekers upon their return are non-exhaustive and perfunctory, particularly with regard to how failed asylum seekers will be treated upon returning to their districts of origin.

    ·DFAT’s emphasis upon prosecutions for illegal departure ignores the extent to which failed asylum seekers may be subject to unlawful or ‘unofficial’ punishments by the Sri Lanka state as a result of the political opinion with which they will be imputed by virtue of their bid for asylum abroad.  These punishments may be inflicted either by the state itself or by armed paramilitary groups allied with the government.

    ·DFAT have devoted undue weight to the prospect of prosecution for illegal departure, without due regard to abuses which may be suffered in custody even absent conviction (or even a formal criminal charge).

    ·Even DFAT’s findings as to the treatment of returnees to Sri Lanka indicate that failed asylum seekers may be seriously harmed upon their return to Sri Lanka.

21. It is also submitted that even if being a failed asylum seeker does not of itself give rise to a sufficient political profile to warrant prosecution, this will not protect the applicant from persecution.  Instead, it is argued, the arbitrariness and authoritarian tendencies of the Sri Lankan government and its routinized and systematic use of torture on detainees (referring to country information from a variety of sources) may cause failed asylum seeker on return to suffer from severe mistreatment through abusive police and army tactics. Further, it is submitted that arrests likely to lead to such mistreatment in custody may occur even in response to mere suspicions of dissent, arising from discovery of a failed bid for protection abroad.  The representative also argues that detainees face significant risks of mistreatment and torture regardless of whether they are charged with an offence.  At hearing the representative said they rely upon Judge Driver in SZQPA[13] to submit that it is the process of investigation rather than the outcome that may place the applicant at risk, and that the applicant would be face a heightened risk given his profile.

    [13] SZQPA v Minister for Immigration and Anor [2012] FMCA 123 (29 March 2012)

1. The Tribunal has had regard to these submissions and relevant country information and acknowledges the concerns articulated about what might happen to returnees, including Tamil failed asylum seekers, if detained.  However, for the following reasons the Tribunal does not accept that the applicant faces a real chance of persecution on this basis on return to Sri Lanka now or in the reasonably foreseeable future.

2. The Tribunal accepts that the applicant entered Australia in mid- 2012 without a visa and by boat and that as such he may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka.

3. The Tribunal accepts that there is no systematic monitoring of the treatment of Sri Lankan returnees and that there are reports that some former Sri Lankan asylum seekers have allegedly been detained and ill-treated after returning to Sri Lanka, voluntarily or otherwise.  The 2013 IRB report contains a number of such reports and notes that several sources report on allegations of torture of Tamil returnees to Sri Lanka by state authorities.  The March 2014 Bar Human Rights Committee of England and Wales report suggests that some witnesses whose previous asylum applications were unsuccessful reported being abducted by security forces upon their return to Sri Lanka.  Some of the reports of ill treatment of returnees provide no details of the profiles of persons who are said to have been mistreated upon return other than to identity them as failed asylum seekers, while other reports refer to their activities with the LTTE in Sri Lanka or abroad.  As put to the applicant at hearing, DFAT assesses that returnees to Sri Lanka are treated in the same way regardless of their ethnicity or religion.  DFAT also report that they are not subject to mistreatment during their processing at the airport. 

4. Further, the Tribunal notes that 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.[14] That report notes, as mentioned, that the absence of any anti-government activity pre and post departure 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.[15]  The applicant told the Tribunal that he fears returning as a failed asylum seeker because the CID instructed him not to go anywhere and given he did if he returns they will say he fled because he was part of the LTTE. For reasons set out above the Tribunal has not accepted the applicant was of adverse interest to the CID, for any reason.  The applicant also said last year his [relative]’s husband, who had been injured during the war, was taken (by the CID according to the applicant’s mother) and is apparently being held in [a] prison, however no one really knows. 

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

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

5. 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.  However, for the reasons set out above, the Tribunal has found that the applicant does not have an actual or perceived association with the LTTE which would cause him to be targeted by the authorities on return as an LTTE suspect of serious concern.  The applicant told the Tribunal that he was not involved in the LTTE.  The Tribunal accepts that one of his brother’s was an LTTE member in the past and the other worked for the LTTE, however for reasons set out above finds remote the chance the applicant would be seriously harmed on return to Sri Lanka on this basis. In these 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. 

6. The Tribunal accepts that when the applicant returns to his home in [District 1], his arrival will be noted and he may be questioned by the Sri Lankan authorities. The Tribunal has had regard to the representative’s submission in this respect that notes, among other things, that assessments of conditions for returnees based upon mere monitoring of their treatment at the airport which fails to follow up on how they are treatment once they return to their regions of origin are inadequate.  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 or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, or for any other reason.  His fears of persecution on grounds of being a member of a particular social group of ‘failed asylum seekers in Sri Lanka’ are not well founded.

   Illegal departure

7. The Tribunal has also considered if the applicant faces a real chance of persecution on return to Sri Lanka because he departed the country illegally.

8. The Tribunal accepts that the applicant, who departed Sri Lanka illegally, is likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act) for doing so.  However, for reasons above, the Tribunal has found that the applicant does not have a perceived association with the LTTE which would cause him to be targeted by the authorities on return as an LTTE suspect.  DFAT indicates in its report that the applicant therefore would be subject to the same penalties as other Sri Lankan citizens who have departed illegally. 

9. At the hearing the Tribunal discussed with the applicant DFAT’s advice that persons charged with such offences are transported to the Magistrate’s Court in Negombo at the first available opportunity.  The Tribunal noted DFAT’s advice that it had been informed by the Sri Lankan Attorney General’s office that no person who was just a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally and that in most cases they have been granted bail immediately and later fined between LKR 5,000 and 50,000. The applicant did not indicate that he or his family would not have the means to pay the fine. 

10. The applicant stated at the hearing that apart from fleeing the country illegally the authorities had already enquired about him and had done so “a couple of times” after he had arrived in Australia.  For reasons set out above the Tribunal has not accepted that was the case.

11. The representative submitted orally (and in writing) that whilst DFAT indicate that returnees may be held in prison for interrogation and then released, the key question is what kind of harm may a person who has links to the LTTE through their family be subjected to during the process of interrogation, even if they are able to convince them subsequently that they are not a member of the LTTE. 

12. The representative asserts in her written submission – among other things - that the means used by the Sri Lankan authorities to enforce laws against illegal departure from Sri Lanka (regardless of their ostensible legality) when considered in the context of the widespread use of torture by security forces, renders the means utilised under the law wholly disproportionate to the aims (part of what is required in order for a law to be one of general application, referring to Applicant S [2004]).  The representative also refers to New Zealand and United States cases to argue that prosecution pursuant to a law proscribing unauthorised departure form a country, and attaching penalties to those who return, may be characterised as persecution on grounds of political opinion in certain circumstances, submitting that this is applicable to the applicant’s circumstances.

13. The Tribunal acknowledges the applicant’s concerns about what might happen to him on return to Sri Lanka because he departed illegally and the representative’s submission on this matter.  However, as discussed with the applicant at the hearing, DFAT advises that Sri Lanka’s departure laws apply to all Sri Lankans, regardless of ethnicity and religion and may therefore constitute laws of general application.[16]  The Tribunal is satisfied that the I&E Act is applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact.  The evidence before the Tribunal does not indicate that the law is being applied selectively or in a discriminatory manner for a Convention reason, rather the DFAT advice referred to above indicates that all returnees are being treated the same way.  The Tribunal is satisfied any questioning, charge, conviction or penalty to which he may be exposed on conviction would arise under a law of general application, and that the application of that law would not be applied to the applicant in a discriminatory way that was different to how it would be applied to any other Sri Lankan citizen, regardless of ethnicity. As such the Tribunal is satisfied that any brief period the applicant may be required to spend in jail or any fine he may incur or any such prosecution or penalty on conviction for an offence will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Refugees Convention because it does not involve systematic and persecutory conduct pursuant to s.91R(1)(c).

    [16] DFAT 2015 Country Information Report for Sri Lanka 16 February at 5.22 – 5.33

14. The information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes that the applicant has his parents [and siblings] in Sri Lanka and there is nothing to suggest that they cannot stand as guarantor for him. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution. 

15. On the evidence before it, the Tribunal finds that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held on remand for a period up to several days while awaiting a bail hearing.  The Tribunal notes DFAT’s advice that it is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka, many of which have been made anonymously by third parties making verification difficult.  In making this assessment DFAT notes the thousands of asylum seekers returned to Sri Lanka since 2009 including from Australia, the US, Canada, UK and other European countries and assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the I&E Act.[17]  The Tribunal does not accept there to be a real chance that the applicant will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing.

    [17] DFAT 2015 Country Information Report for Sri Lanka 16 February at 4.20-4.21

16. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system.[18]  However in this case the Tribunal has found, for the reasons set out above, that the applicant does not have an actual or perceived association with the LTTE which would cause him to be targeted in the prison system. The Tribunal finds the chances remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison.  As discussed, the Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand.  The Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

    [18] Freedom from Torture, 2012, Sri Lankan Tamils tortured on return from UK, 13 September. 

17. For these reasons, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

    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. In her written submission the representative states, among other things, that the applicant will be detained on return to Sri Lanka because of his irregular departure, and there is a real risk that whilst detained he will experience significant harm.  She refers to country information about reports of torture, abusive practices against persons in custody and poor prison conditions.  The UK Asylum and Immigration Tribunal decision (GJ and Others) is also referenced, which concludes, among other things, that ‘if a person is detained by the Sri Lankan security forces there remains a real risk of ill-treatment or harm requiring international protection.’  While in custody, it is submitted, Tamils and perceived supporters of the LTTE have been tortured and subject to cruel, inhuman and degrading treatment; in particular, there are extensive reports of rape and sexual abuse against Tamils in detention.[19] The representative also submits that racial discrimination may, in certain circumstances of itself amount to ‘degrading treatment’ (he refers to East African Asians v United Kingdom (1973)) and submits the discrimination which the applicant will be subject on return will amount to significant harm through degrading treatment or punishment.

    [19] Referring to Human Rights Watch, “We Will teach you a lesson” – Sexual Violence against Tamils by Sri Lankan Security forces, 26 February 2013

22. The Tribunal has had careful regard to these submissions as well as the applicant’s evidence about his concerns in this respect. For reasons set out above, 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 imputed political opinion, his membership of a particular social group of ‘failed asylum seekers’, or the fact that he departed Sri Lanka illegally. 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.[20]  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. 

    [20] 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. As mentioned, at the Tribunal hearing the representative argued that the applicant is at risk of harm during the process of interrogation itself, even if the applicant is eventually able to convince them he is not a member of the LTTE.  She submitted further that country information indicates that some police methods are not according to rule of law, there is frequent use of torture and ill treatment is common even for minor offences and they are not punished for this. 

24. The Tribunal has had careful regard to these submissions as well as the applicant’s evidence about his concerns in this respect.  For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  In view of the DFAT advice cited above, the Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.  The Tribunal has found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine of between LKR 5,000 and 50,000.  There is nothing to suggest on the evidence before it that the applicant (or his family members) will be unable to pay such a fine if it is imposed upon him.  Nor does it accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he would spend on remand awaiting a bail hearing.  The Tribunal has accepted that prison conditions in Sri Lanka are generally poor, but it does not accept that there is a real risk that the applicant would be subject to particularly harsh prison conditions to constitute significant harm (such as a violation of Article 7 of the ICCPR as set out in PAM3 Refugee and humanitarian – Refugee Law Guidelines) while on remand for a short period of time as a result of those conditions. 

1. 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

2. 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).

3. 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).

4. 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

5. 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.