1401831 (Refugee)

[2016] AATA 3814

1401831 (Refugee) [2016] AATA 3814 (9 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401831

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:9 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2016 at 2:46pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] February 2014.

3. The applicant appeared before the Tribunal on 12 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.  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.

7. The Tribunal notes that the Department of Foreign Affairs and Trade (DFAT) released an updated country information report on Sri Lanka on 18 December 2015, after the hearing, which the Tribunal has had regard to in reaching its decision as set out below.  This report replaces the previous DFAT report released on Sri Lanka, published on 16 February 2015, and the October 2014 DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam (LTTE).  At hearing the Tribunal discussed with the applicant relevant information contained in the previous reports, in particular in regard to his claims related to his Tamil ethnicity, imputed (pro-LTTE) political opinion, his failed asylum seeker profile and illegal departure.  The information contained in the new report on these matters is reasonably consistent and confirms the information contained in the previous report. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Refugee assessment

8. The applicant – a [age] year old single Tamil male from [village], Batticaloa district in Sri Lanka’s east – claims to fear serious harm from the authorities on return to Sri Lanka on imputed political opinion grounds as a suspected Liberation Tigers of Tamil Eelam (LTTE) supporter, and as a failed Tamil asylum seeker.  The Tribunal has also considered if he faces a real chance of persecution on return because he left Sri Lanka illegally, by boat, in June 2012 and as if he is perceived to be wealthy. 

   Perceived LTTE links

9. The applicant fears being imputed with a pro-LTTE political opinion on return to Sri Lanka by the authorities, and face a risk of serious harm, primarily because his family supported an LTTE boy called ‘[Mr A]’ from around 2002 to 2008.  He claims his father was arrested and imprisoned for one year and 10 months on suspicion of supporting the LTTE as a result, and that the applicant was detained for two days as well in 2008.  He claims further that his father was released in July 2010 on condition that he, his wife [and children] remain in [City 2] and the applicant has stated that he fears repercussions on return because he left the area.

10. The applicant gave oral evidence about his parents’ support to an LTTE cadre ([Mr A]) in the past in Sri Lanka.  By way of context and background, he told the Tribunal that in 2000, when his family were living in an LTTE controlled area of Batticaloa district, the LTTE forcibly recruited his [sibling]. Two days later the applicant’s father and brother ([Mr B]) visited the LTTE and an agreement was made for the applicant’s [sibling] to be released if the applicant’s brother stayed, which he did.  To avoid any other family members being recruited, including the applicant, the applicant and his family then moved to [City 1] (apart from one [sibling]).  In 2002 the applicant’s father returned to Batticaloa and negotiated the release of the applicant’s brother on the agreement that they would feed an LTTE cadre when he visited their house on occasion. The applicant said although his father initially refused, he eventually gave in to their demands after the LTTE threatened to kill his family members.  The applicant’s parents fed [Mr A] whenever he appeared at their house in Batticaloa from 2002, where they had returned to from [City 1] with the applicant’s [sibling] (the applicant stayed living with a relative in [City 1]).  When the applicant’s parents moved from Batticaloa to [City 2] in 2005 (joined by the applicant from [City 1]), [Mr A] also appeared at their house on occasion where he was fed. 

11. The applicant told the Tribunal that when he lived in [City 2] he met [Mr A] a number of times when he came to eat at their house, but had no idea that he was an LTTE member.  It was only sometime after his father’s arrest by the police’s Criminal Investigation Department (CID) – [in] September 2008 – that he learned about [Mr A]’s involvement with the LTTE.  Police had purportedly discovered weapons and bomb making material in a house in [City 2] where [Mr A] was also located.  [Mr A] told police when questioned, among other things, that he used to visit the applicant’s father’s house.  The applicant said that the police detained his father for around three months in [a] police station, then [a] prison until he was taken to court and then released from prison in July 2010.  The applicant was asked about the specific charges brought against his father and the outcome of the court case.  The applicant said the CID brought a case against [a number of] people, including his father, for allegedly supporting the LTTE.  They suspected the applicant’s father helped [Mr A] transport the weapons found in the house that was raided.  When asked the outcome of the court case, the applicant said his father was released with no charge, noting that [Organisation 1] had advocated for him in court, advising that his father was an old man, with some injuries in his leg (due to being beaten) who could not walk for a long distance.  The applicant said his father was released in July 2010 with the condition that he (and the applicant, his mother, and brother) stay in [City 2] (no end date was specified).

12. Included in the material the applicant provided to the Department as evidence of his father’s detention was a copy of a letter from the Office of the Superintendent of Police [City 2] to the [official] of the [Organisation 2] in Sri Lanka dated [in] May 2009; a copy of a complaint receipt from [Organisation 2], Batticaloa dated [in] October 2008 (which refers to the arrest of ‘[Mr C]’); a copy of letter from [Organisation 2] dated [in] March 2009 to [name] advising that the complaint dated [in] March 2009 had been registered; and a document from [Organisation 1] titled “[title]” dated [in] July 2010 in which it is stated that delegates visited ‘[Mr C]” for the first time [in] November 2008 in [a] police station ([District]), again in [a] Detention Camp ([District]) and [City 2] Prison ([District]) between [March] 2009 and [January] 2010 and that the prisoner was released “according to himself” [in] July 2010 from [City 2] Prison.

13. The applicant told the Tribunal that in November 2008, after the CID had detained his father, the CID took him from his [workplace] in [City 2], blindfolded him and drove him to some unknown room somewhere, tied his arms, questioned him about [Mr A], and beat him.  The applicant did not know that [Mr A] was an LTTE member at that stage.  The CID beat him with a pipe and slapped his face.  After three nights they blindfolded the applicant once again and drove him back to his house, dropping him off one or two roads before his house. 

14. In his written statement to Tribunal with respect to the November 2008 detention and beating by the CID, the applicant stated that he was beaten, including being struck on his elbow and that he still has trouble with his elbow; questioned about his father; shown photographs of the boy who came to their house; slapped when he acknowledged that he had seen him and that he had come to their house; that when he was detained his mother called the CID office regularly, was crying and begged for his release; and that he was released two days later.

15. After the Tribunal hearing the applicant provided via his representative a number of translated court documents regarding his father’s (and the other suspects) detention on suspicion of LTTE involvement.  Also provided was a translated letter from the applicant’s mother to the [senior officer], Police station, [location], dated “2008.10.[date]” in which she states, among other things, that her husband ([Mr C]) was taken in to custody on “2008-09-[date]” on suspicion by the T.I.D officers, that currently he was in [prison], and that she asked for his release.

16. The applicant told the Tribunal that they experienced ongoing problems from the CID after their father was released from prison in July 2010.  He said they would “come and go”: in total about four or five times from July 2010 until the applicant left the country in June 2012.  The CID officers would ask whether they were working for the LTTE and if they considered they answered incorrectly or angrily, they beat them.  When asked who specifically, the applicant said he thinks his father was beaten two or three times, his brother once, and himself twice.  In January 2012 he said CID officers visited their family home in [City 2] and beat all of them (that is him, his father, and his brother).  After this incident he decided to leave Sri Lanka.  The applicant told the Tribunal that after he left Sri Lanka in mid-2012 the CID officers visited his parents in [City 2] another three or four times, asking about his whereabouts: the first time his mother told them that he had gone to the shop, and the second and third time that he had gone to [District 1].   When asked if his family were ever physically harmed during these visits, the applicant said that “once or twice” they beat his father and his brother was beaten too, but he did not know how many times exactly.   

17. The applicant said CID officers continued questioning his family members even after they returned to live in Batticaloa in 2014, on two or three occasions, the last time two or three months prior (to the hearing) when they asked the applicant’s whereabouts and beat his brother after he said he did not know.   When asked why the CID visited his parents in Batticaloa, the applicant said because the authorities had told them to stay in [City 2], yet they moved to Batticaloa, and told them the applicant had moved to [District 1], which made them suspicious.

18. At the Tribunal hearing the representative submitted, among other things, that the applicant has outlined how he (and his family) has come to the adverse attention of the authorities in the past in Sri Lanka; how they have been seriously mistreated; how his father was detained for one year and 10 months and mistreated on suspicion of assisting the LTTE; how the applicant was detained and mistreated including in November 2008 in relation to his father; and how the applicant continued to face mistreatment and adverse interest by the authorities until he fled Sri Lanka in mid-2012.  The representative submitted that the applicant claims that his family have continued to face mistreatment and adverse CID interest after the applicant left Sri Lanka.  Further, he argued that country information (as set out in his written submissions) indicates that despite the overall improvement in the security situation in Sri Lanka after the war, the human rights situation remains poor, especially for Tamils.

19. There are some inconsistencies between the applicant’s evidence in his statutory declaration to the Department and oral evidence to the Tribunal about the alleged detention of the applicant’s father.  Specifically he stated in the statutory declaration that his father was detained from [March] 2009 until [January] 2010 and that from January 2010 to June 2012 when he left Sri Lanka, if there was unrest in [City 1], his father, brothers and the applicant were questioned, harassed and beaten up by the CID (allegedly five to six times).  However in his oral evidence to the Tribunal the applicant was clear that his father was not released from prison until July 2010, which is reflected in the information contained in the letter from [Organisation 1] provided (among others) and the Tribunal accepts that was the case.  Despite this inconsistency in dates, the Tribunal accepts the applicant’s father was detained for around one year and 10 months from September 2008 to July 2010 on suspicion of supporting the LTTE, following a raid on a house in [City 2] that revealed a cache of weapons and bomb-making equipment, inhabited by an LTTE cadre ([Mr A]) whom the applicant’s parents had fed on occasions in the past.  It also accepts that his father was beaten during his time in prison. 

20. The Tribunal also accepts that the applicant was detained for two days in November 2008 and questioned and beaten by CID officers in relation to his father, [Mr A] and suspected LTTE links.  However the Tribunal notes on the applicant’s own evidence they released him after two days, which does not indicate that they considered him a suspect.  With regard to the applicant’s father, the Tribunal considers the fact that the authorities released him without charge or a sentence, and the only restriction was to remain in the [City 2] area indicates to the Tribunal that the applicant’s father was not considered an LTTE suspect in general or in relation to the specific allegations of possessing, storing and possibly transporting ‘offensive weapons’ (as described in three translated court-related documents the applicant provided to the Tribunal post-hearing)[1] or of particular concern or interest to the authorities at the time.  The Tribunal considers that if the authorities suspected that the applicant’s father was involved in terrorism-related activities they would not have released him in mid-2010, even if [Organisation 1] had argued in court that he was old and had trouble walking, as claimed by the applicant.  At hearing the applicant said that although [Mr A] had told the CID he only ate at their house on occasion, the CID listed other charges, wanting to do anything to finish the case (when asked the applicant said he does not know what happened to the other suspects).  Given these considerations, the Tribunal is of the view that the authorities considered the applicant’s father had provided support to [Mr A] in terms of feeding him in the past, but nothing more.

    [1] All from the Officer in Charge, [name] Unit, [City 2], to the Magistrate, [Magistrates] Court, dated ‘2009.02.[date]’, ‘2008.10.[date]’, and ‘13/01/[date]’, requesting the suspects listed (which included ‘[Mr C]’) be detained pending further investigations. 

21. Furthermore, the applicant told the Tribunal that he and his father visited [country] [in] December 2011, returning in January 2012.  They left Sri Lanka and returned on their own passports issued in their own names and did not experience any problems.  The applicant said at hearing that they went with 100 or so other people and the trip was organised by [name].  When asked how his father was able to leave the country at that time given he claimed a condition of his release from prison in July 2010 was that his father could not leave [City 2], the applicant did not answer the question and instead reiterated that they did not go alone, and that the trip was the responsibility of [name], who takes people every year.   In his written statement to the Tribunal[2] the applicant explained that they were part of a large group, their visa was organised and all arrangements made through [a] group who regularly organise group [trips].  In his written submission to the Tribunal the representative referred to numerous internet references [noting] that it appears to have the support of the Sri Lankan government, as well as a report from the Danish Immigration Authorities regarding the departure of Tamils through [City 1] airport in which it is stated that immigration officials told them that further checks on travellers are only carried out in cases where such documents (such as a passport) arouse suspicion, and that it is not possible to check all departing travellers on the basis of lists of wanted persons.  It is submitted therefore, that there is no logical basis to assume (as the delegate did) that if the applicant and his father were able to leave Sri Lanka they were no longer of interest to the authorities.  The Tribunal has had regard to this submission and the relevant country information contained within it. The Tribunal notes the date of the report from the Danish Immigration Authorities about the departure of Tamils through the [City 1] airport is not obvious on the webpage cited.  The Tribunal accepts that [a trip was] organised [to] [country] for a number of people, including the applicant and his father, however this would not prevent the authorities from registering his father’s departure from the country (and from the [City 2] area in breach of a condition of his prison release).  Given these considerations, the Tribunal is of the view that neither the applicant nor his father was of particular interest to the authorities at that time, or that there was any real consequences to breaching the condition on the applicant’s father’s release to remain in the [City 2] area. 

    [2] Dated [in] April 2014

22. The Tribunal has considered the applicant’s claims about ongoing harassment and questioning from the authorities after his father was released from prison in July 2010.  The Tribunal has some concerns with his evidence in this respect for reasons that follow.  The Tribunal found the applicant’s oral evidence about aspects of his claims of ongoing interest by the CID after his father’s release from prison to be vague and lacking in details.  For instance he told the Tribunal that in the period from when his father was released from prison (July 2010) to the time he left Sri Lanka (July 2012) the CID would “come and go” regularly to their house, in total four or five times, and that during those times his father was beaten two or three times, his brother once and himself twice yet he did not provide any particular details or context.   Given these concerns, combined with the Tribunal’s finding that the applicant’s father was not considered an LTTE suspect on release from prison for reasons set out above, the Tribunal does not accept the applicant’s claims to have been questioned, harassed, and beaten by the CID a number of times from July 2010 to July 2012.  Nor does it accept that the applicant’s father or brother were harassed, questioned or beaten in this period as claimed. 

23. The Tribunal also found the applicant’s oral evidence about his parents and brother being questioned and harassed a number of times by the CID, and his brother beaten on one occasion after their return to Batticaloa in 2014 to be vague and lacking in details and the Tribunal does not accept the applicant’s claims in this regard.  For instance the applicant  could not recall exactly how many times the CID had allegedly visited his parents’ house, stating only two or three times, and did not provide any particular details or context about the visits. As well, the Tribunal notes an internal inconsistency in the applicant’s evidence in this respect. That is, whilst on the one hand he stated that a condition of his father’s release was that he and his family were not to leave [City 2], they moved to Batticaloa in 2014, with no apparent repercussions.  When asked at hearing why the CID allowed the applicant’s father and mother stay in Batticaloa, given a condition of his father’s release was to remain in [City 2], the applicant said because when the CID visited his family members told them that as he was old, he needed to be near the applicant’s [sibling] in order for [the sibling] to help look after him.  The Tribunal is not persuaded that the applicant’s father’s (old) age would be a factor in the authorities’ decision to relax the condition set down after his release from prison and considers that it is more likely because he was no longer considered an LTTE suspect or person of adverse interest.  

1. In summary, the Tribunal has accepted that the applicant’s father was detained for almost two years from September 2008, suspected of being an LTTE member, and beaten during his imprisonment.  However he was released without charge and the Tribunal does not accept that he was of ongoing adverse interest to the authorities for reasons discussed above.  The Tribunal also accepts that the applicant was detained and beaten over a two day period in November 2008, also on suspicion of supporting the LTTE because his father had fed an LTTE cadre in the past (who was located in a house full of weapons and bomb making material).  However the applicant was released after two days and the Tribunal does not accept that he was of any adverse interest to the authorities in relation to this matter.  The Tribunal notes that further time has passed since these events 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]  For reasons above the Tribunal does not accept the applicant’s claims that the CID or anyone else have enquired about his whereabouts since he left Sri Lanka, which indicates that he not of particular concern with respect to LTTE links. The Tribunal also notes that nothing has happened to the applicant’s siblings who remain in Sri Lanka[4], including his brother who he said has remained living in [City 2] and works in [City 1] (as [occupation]). 

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

   [4] The applicant told the Tribunal at hearing that one of his [siblings] currently resides in [country] and another in [country].

2. The Tribunal has also considered the applicant’s claims that his brother, [Mr B], was an ex-LTTE member.  As mentioned, at hearing he said that his brother was forcibly recruited to the LTTE in 2000 (in exchange for his [sibling]) and left in 2002.   The applicant told the Tribunal that [Mr B] moved to [District 1] to work as [occupation] after he left the LTTE in 2002 until 2008/09 when he divorced and returned to Batticaloa with his new wife.  The applicant said he is not in touch with his brother any more.  When asked, the applicant said that he did not experience any problems from the authorities because of his brother’s involvement with the LTTE in the pasts because they did not know about that, nor did village members because his brother had moved to [District 1].   Although the applicant failed to mention that his brother was an LTTE member in his written claims to the Department, the Tribunal is willing to accept that he was (an LTTE member), noting that it was common practice for the LTTE to recruit at least one family member from Tamil families in these areas during this time.  However, this took place over 13 years ago, and on the applicant’s own evidence that he did not experience any problems from the authorities as a result of his brother’s LTTE membership in the past in Sri Lanka. The Tribunal therefore finds the chance of the applicant facing serious harm at the hands of the authorities on the basis of being imputed with a pro-LTTE political opinion because of his brother’s LTTE membership in the past to be remote. 

3. The Tribunal notes that at hearing the applicant said this brother, who now works in [City 1] as [occupation], was working in [location] when his father was detained and that his brother was detained by the CID for a month in 2008 in connection with his father.  The Tribunal accepts that was the case.  However the applicant’s brother’s detention took place almost eight years ago and the applicant has not claimed that his brother experienced any further problems from the CID or the authorities. On this basis the Tribunal finds remote the chance that the applicant would be imputed with a pro-LTTE political opinion and face serious harm from the authorities on return to Sri Lanka because of his brother’s detention by the CID in 2008.

4. The Tribunal notes that at the hearing the applicant said that his [sibling]’s [spouse] is [occupation] in Batticaloa and when asked if has experienced any problems, the applicant said sometimes ‘they’ come and round [them] up.  When asked what he meant, the applicant said that if there is a problem, for example a shooting, the police round up the Tamils living in the area, take them to the police station and question them.  Asked if these sorts of round ups (of Tamils) still occur, the applicant said they do, and gave an example of when someone was shot in Kaluvanchchiikudi (near Munaitivu village) in 2012 the police took five or six [people], including the applicant’s [relative], questioned them, then let them go.  He said the police needed to show they were questioning someone.  The Tribunal accepts the applicant’s [relative] may have been rounded up, along with other Tamils from [the] area, in the past when a crime occurred and questioned by the police as claimed. However on the applicant’s own evidence [the relative] was released after questioning and the Tribunal does not consider [that the relative] was specifically targeted. The Tribunal also notes that although the applicant said that round ups of Tamils still occur, the example he gave was related to an incident in 2012, which is not current.  Given this consideration, when combined with the improved security situation since the end of the war, the Tribunal considers remote the chance that the applicant would be caught in a round up of Tamils on return to Sri Lanka in the foreseeable future.

5. Taking into account these considerations, the Tribunal is of the view that whilst the applicant may have been questioned about possible LTTE links and ill-treated by the authorities for a brief period in November 2008 and his father was detained for almost two years from September 2008, neither were considered to have had more elaborate links with the LTTE by the authorities at the time of their release or thereafter.  The Tribunal therefore finds it remote the chance that the applicant would be seriously harmed on return to Sri Lanka by the authorities on the basis of an imputed political opinion because he was questioned and mistreated by the CID over a two day period in 2008, or because his father was detained by the authorities for almost two years from 2008 to 2010, or because his brother was an LTTE member, or because his [relative] has been questioned by police in the past or for any other reason on return to Sri Lanka now or in the reasonably foreseeable future.  His fears of persecution on these grounds in isolation or considered cumulatively, attributable to a pro-LTTE political opinion, are not well founded.

   Tamil ethnicity 

6. In his written submission[5] to the Department the applicant’s representative submitted, among other things, that the essential and significant reason why the applicant fears persecution is because of his Tamil race and his real and imputed political opinion arising from his Tamil race.  His fears are exacerbated because he is a member of a particular social group of Tamils who fled Sri Lanka and who have unsuccessfully made claims for asylum in Australia (addressed separately below).  Country information from a variety of sources is referenced to support the representative’s contention in this regard (including a 25 June 2010 DFAT report and 6 December 2010 report from the International Crisis Group, which the Tribunal notes are somewhat out of date).  Specifically it is submitted that the following are indicators of the serious circumstances that Tamils continue to face: ongoing human rights abuses against Tamils; ethnic repression of Tamils by forcefully resettling Sinhalese in Tamil areas; an increased troop presence in the north and east; and ongoing paramilitary activities.  The representative highlights more recent country information from a variety of sources about the imputation of failed Tamil asylum seekers with an LTTE link on return to Sri Lanka, and concerns in this regard in a written submission to the Tribunal[6].  

   [5] Dated [in] January 2013

   [6] Received on 5 May 2014

7. The Tribunal has had regard to these submissions, including relevant country information contained within them, and acknowledges the representative’s concerns about lack of progress towards meaningful reconciliation for Tamils in post-war Sri Lanka, among other matters.  Nonetheless, for the reasons above the Tribunal has not accepted the applicant faces a real chance of persecution on the basis of an imputed political opinion on account of his father’s detention in 2008-2010, his association with an LTTE cadre ([Mr A]), his brother’s involvement with the LTTE from 2000 to 2002 or for any other reason. Whilst it has accepted that the applicant was detained and beaten by the CID over two days in November 2008, for the reasons above it does not accept that he faces a real chance of serious harm on return on the basis of being imputed with a pro-LTTE political opinion or any other reason.  For the following reasons, the Tribunal finds the applicant’s claim to fear harm on return to Sri Lanka because of his Tamil ethnicity or that he will be imputed with a pro-LTTE political opinion solely because he is Tamil is not well-founded. 

8. The Tribunal acknowledges the submissions and the applicant’s concerns articulated, including that Tamils continue to face repression by forcefully resettling Sinhalese in Tamil areas, increased troop presence in the north and east and ongoing paramilitary activities.  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, as discussed with the applicant at the hearing, the Tribunal does not accept that simply being a Tamil or a young Tamil male gives a rise to a well-founded fear of persecution from the authorities in Sri Lanka.  Or that it would be assumed that all Tamis lint eh north or east of Sri Lanka were connected to the LTTE.  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] DFAT Country Report Sri Lanka 18 December 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

9. The Tribunal also notes that 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,[8] as discussed with the applicant at the hearing.  The applicant said that if anything bad happens (to Tamils) the government will not say anything, only when something good happens. 

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

10. Having regard to the information 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 assesses 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 Sinhalese majority nor the Sri Lankan authorities, nor in combination with what the Tribunal accepts in respect of the applicant’s imputed political opinion, as discussed.  The applicant’s fear of persecution on this basis is not well founded.

11. The Tribunal notes that in the written submission to the Tribunal the representative argues, among other things, that the applicant, a Tamil from Northern Sri Lanka is at risk of being imputed an LTTE sympathiser, simply because of his ethnicity and place of birth. The applicant is not from the north, but from the east of Sri Lanka. 

12. The Tribunal notes at hearing that the applicant stated that in 2005 his parents and [siblings] stayed in [a] camp (a government controlled area) located about 1 km away from [location], near [a] village because of the fighting between government and the LTTE in the LTTE-controlled areas of Batticaloa district.  He was not sure exactly how long they stayed at the camp for, but noted that they moved to [City 2] at the end of 2005.  The Tribunal accepts the applicant’s claims in this regard but given many other Tamil families had been displaced by the conflict during this period, sometimes more than once, the Tribunal finds remote the chance that the applicant would be imputed with a pro-LTTE political opinion on this basis, also noting that they were in the camp over 10 years ago, and finds the chance of him being seriously harmed as a result on return to Sri Lanka is remote.

13. The Tribunal has considered the applicant’s claim that the CID will harm him on return because they told him to stay in [City 2], yet he did not (and his mother told them he was in [District 1]).  The Tribunal notes in this regard the applicant’s oral evidence that his parents, who were also told to stay in [City 2], moved to Batticaloa in 2014 with no apparent repercussions. Also the applicant and his father travelled to [country] in late 2011, returning in early 2012 with no problems. The Tribunal therefore finds remote the chance the applicant would be seriously harmed by the CID because he did not stay in [City 2] on return to Sri Lanka.

    Perceived to be wealthy

14. At the Tribunal hearing the representative submitted that the applicant fears returning to Sri Lanka as a member of a particular social group of Tamil [occupation] perceived to be wealthy.  The delegate notes in her decision record[9] that the applicant’s representative provided “a verbal post-interview submission” [in] August 2013 with the following additional claims, including:

    The applicant may be targeted due to his membership of a particular social group of his occupation as [occupation] in Sri Lanka or being perceived to be wealthy due to hi [occupation]. The representative submits that there is a real risk of a person perceived to be wealthy as [occupation] being targeted.  IF the applicant moves to the East, the (UNHCR) guidelines state that there is a real chance that extortion may take place as the Tamil paramilitary groups are involved in all types of criminal activities and due to the paramilitary groups being linked to the governments its not mere extortion. It is an act committed by someone who is linked to the government who can act with impunity and there is a real chance of being persecuted due to the applicant being perceived to be wealthy or one actually being wealthy.

    [9] A copy of which the applicant provided to the Tribunal on review

15. The Tribunal has considered this submission.  It notes, as did the delegate, that the applicant has never raised this claim in his written or oral evidence to the Department or Tribunal, including when asked specifically the reasons he fears returning to Sri Lanka at hearing.  Nonetheless, the Tribunal accepts the applicant’s father, brother and [relative] are [occupation] and that he has trained as [occupation] in the past in Sri Lanka and may resume such work on return, including to the east coast.  Also, the Tribunal notes, as did the delegate that the applicant himself has not claimed to be wealthy and he told the Tribunal that he only received a small amount of money when he helped a [person] out in the past when living in [City 2].  As such the Tribunal does not accept that the applicant is wealthy as claimed.  He may work in the field in Batticaloa on return and may be perceived to have some money on this basis.  The Tribunal notes that at the hearing the applicant gave evidence that his father employs people to make [products] in Batticaloa, from which he receives an income.  He did not indicate that his father was targeted or experienced any problems as a result.  Given these considerations the Tribunal finds remote the chance the applicant would face serious harm on return to Sri Lanka on the basis of being a member of a particular social group of ‘Tamil [occupation] perceived to be wealthy’ or as [occupation] or for any other reason from paramilitaries or anyone else.  His fears of persecution on this ground are not well founded. 

    Failed asylum seeker

16. It is submitted that the applicant fears he will be persecuted as a failed asylum seeker on return to Sri Lanka. 

17. The representative submitted that country information confirms that the Sri Lankan authorities perceive those seeking asylum in Australia to be supporters of the LTTE and that those returning from countries perceived by the Sri Lankan authorities to ‘harbour’ a pro-LTTE community face torture and significant harm on return.  A 2012 report from Freedom from Torture[10] is highlighted in the submission, as well as opinions expressed by Sri Lankan officials in independent news reports.  Country information from a variety of sources is also referenced in the representative’s submission to the Department on this matter, including form organisations such as Human rights Watch (2012) and Freedom from Torture (2012), as well as relevant case law.   A more recent Human Rights World Report dated January 2015 is also cited, which documents use of torture suspected of links to the LTTE, including failed asylum seekers. 

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

18. At the Tribunal hearing the applicant said he does not know what the authorities will do if he returns as failed asylum seeker, and no one can ask and if they do they will get into trouble.

19. The representative submitted at hearing that there are numerous reports of failed asylum seekers being harmed on return to Sri Lanka; that the applicant as a failed asylum seeker who has come to the adverse attention of the authorities in the past (linked to the LTTE) will undergo questioning at the airport or shortly after he returns to his hometown; that during that process the previous problems and his family problems and suspected association with the LTTE will come to the fore and their suspicion of his links to the LTTE will be heightened because he fled the country illegally and as a failed asylum seeker; that he therefore faces a real chance of being detained and physically harmed during such interrogation; and that even if the applicant eventually convinces the authorities that he is not of further concern, there is  a real chance of serious harm occurring beforehand. 

20. 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. 

21. 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.

22. 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.[11] As already mentioned, that Guidance notes 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.[12] 

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

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

1. 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 his Tamil ethnicity, 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 face a real chance of persecution on the basis of an imputed pro-LTTE political opinion, his Tamil ethnicity, membership of particular social groups, or any other reasons.  In these circumstances the Tribunal considers that such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant did not have elaborate links with the LTTE and the Tribunal is not satisfied that standard questioning amounts to serious harm.  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.  As the Tribunal put to the applicant in the hearing, various sources including DFAT, other foreign governments and UNHCR  regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile  such as a criminal record or known involvement with the LTTE. While the Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and claimed to have never been involved with the LTTE or assisted them in any way and the findings above that neither he or any members of his family had been suspected of having any involvement with the LTTE, the Tribunal finds on the country information before it, including the information referred to by the applicant’s previous and current adviser in their submissions to the Tribunal, that the applicant would be released without further interest and he would not face a real chance of persecution as failed asylum seeker or Tamil failed asylum seeker or because he would be viewed as exposing the persecution of Tamils to the world by fleeing to Australia and seeking asylum.

2. For these reasons the Tribunal does not find that the applicant faces a real chance of serious harm from the authorities or anyone else on return to Sri Lanka as a failed asylum seeker.

3. 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 or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, a Western country or for any other reason.  His fears of persecution on both membership of a particular social group and imputed political opinion grounds is not well founded.

   Illegal departure

4. It is submitted that the applicant also fears harm on return to Sri Lanka because he departed the country illegally.

5. 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 face a real chance of persecution on the basis of an imputed (pro-LTTE) political opinion which would cause him to be targeted by the authorities on return as an LTTE suspect of particular concern.  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. 

6. 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 [City 2] 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[13].  The applicant did not indicate that he or his family would not have the means to pay the fine.  The Tribunal notes that the applicant’s parents and brother currently reside in Sri Lanka and there is nothing to suggest that they cannot stand as guarantor for him if required, or help him pay the fine if incurred. 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. 

   [13] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.32 – 5.33

7. 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. At hearing the applicant said if anything bad happens after the fine is paid, they will not tell these things to anyone: only if something good happens.  He said around one a half months prior to the hearing his father had an accident [and] hurt his head and arms but only found out about it three or four days after.   Whilst that may have been the case, 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, or for any other reason.

8. The Tribunal acknowledges the applicant’s concerns about what might happen to him on return to Sri Lanka because he departed illegally.  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 and that detainees are not subject to mistreatment during their processing at the airport.[14]  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).

   [14] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 5.31

9. 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 with relatively few allegations of torture or mistreatment 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.[15]  Given the Tribunal’s finding about the applicant’s profile, namely that he is of no particular adverse interest to the authorities or anyone for any reason, 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.

   [15] DFAT 2015 Country Information Report Sri Lanka 18 December 2015 at 4.23

10. The Tribunal accepts that prison conditions in Sri Lanka are generally poor.  However in this case the Tribunal has found, for the reasons set out above, that although the applicant has been questioned and beaten and detained over a two day period in November 2008, the applicant does not face a real chance of serious harm on the basis of an imputed (pro-LTTE) political opinion and therefore finds remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail.  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.

11. 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, or when they return to their home areas, 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.

    Other matters:-

12. The Tribunal notes in the written submission the representative refers to an increase in religious based persecution noted by human rights organisations (for example Human Rights Watch (2014)) since the applicant has been in Australia and an example was provided of attacks against Christian churches.

13. The applicant has stated that he is a Hindu, which the Tribunal accepts.  When asked at the hearing if he experienced any problems as a Hindu in Sri Lanka, he said there was no problems his village because the population was predominantly Tamils/Hindu; however he noted that he could not go to the temple at night because of the security situation.  The Tribunal notes on this point the security situation has improved significantly since the end of the war in May 2009.  Further, he said that in [City 2] he could not go wherever he liked because Tamils, Muslims, and Sinhalese lived there and if Tamils are out at night, police will detain them.  He said that one Friday night in 2004 when he was drinking tea at a tea shop around 9pm, police took him to [City 2] police station, and released him on the Monday.  He said that happened two or three times in the past, but did not elaborate.  The Tribunal accepts that the applicant may have been detained by police for two nights in 2004 and possibly two or three other times in the past merely for being a Tamil out at night.  However the Tribunal finds remote the chance that the applicant would experience any problems on account of being detained these times in the past.  The applicant does not claim the reasons for his detention were to do with his religion and the Tribunal finds the applicant has not experienced any problems in the past as a Hindu. The Tribunal therefore finds remote the chance that the applicant would face a real chance of serious harm on return to Sri Lanka on account of his Hindu religion.  Further, as the security situation has changed significantly since the end of the war, as discussed above, the Tribunal finds remote the chance the applicant would be detained in the future merely as a Tamil out at night. 

14. The Tribunal notes also that in the conclusion in the written submission to the Tribunal the representative submitted, among other things, that the applicant has a well-founded fear of persecution for a number of reasons including “his family dispute with well-connected Sinhalese thugs”.  However there is no mention elsewhere in any submissions before the Tribunal or Department or the applicant’s oral or written evidence to fear ‘Sinhalese thugs’ and the Tribunal notes at hearing when asked who he fears on return to Sri Lanka, the applicant made no mention of a family dispute with Sinhalese thugs.  The Tribunal therefore finds the applicant does not have a well-founded fear of persecution on this basis.     

    Conclusion – Refugee grounds

15. 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.

16. 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

17. 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).

18. In his written submission to the Department the representative submitted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk that the applicant would suffer significant harm.  It is submitted that in view of the general oppression of Tamils, the propensity of government security forces to resort to torture, including torture designed to extract information from returning asylum seekers, perpetrated in a climate of impunity and judicial corruption, and including nationally pervasive human rights violations by Sri Lankan authorities and systemic deprivation of cultural freedom, land rights and freedom of expression, there is a real risk that the applicant will encounter one or more of the five types of significant harm set out in s.36(2A) of the Act. 

19. The Tribunal has considered these submissions.  However, 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 ‘Tamil [occupation] perceived to be wealthy’ or ‘failed asylum seeker’ or from Sinhalese thugs or for any other reason.  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.[16]  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. 

    [16] 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].

20. 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.  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, such as overcrowding and poor sanitary conditions, but finds it remote the 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. 

21. 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

22. 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).

23. 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).

24. 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

25. 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.