1402036 (Refugee)

[2015] AATA 3877

1402036 (Refugee) [2015] AATA 3877 (9 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1402036

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Shahyar Roushan

DATE:9 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 09 December 2015 at 2:16pm

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 is a national of Sri Lanka, a Hindu and of Tamil ethnicity. He was born in [year]. He arrived in Australia by boat [in] August 2012.

3. The applicant essentially claims that, in 2005, he was abducted by the Tamil Makkal Viduthalai Pulikal (TMVP), a paramilitary group also known as the Karuna group (Karuna). He was detained, mistreated and accused of collecting information for the LTTE. He was subsequently questioned many times by the authorities. He left Sri Lanka after the CID contacted him in May 2012 and asked to see him. He fears being harmed for his imputed political opinion and having departed Sri Lanka illegally.

4. The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Relevant Law

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to DFAT’s Country Information Report – Sri Lanka (3 October 2014); Country Information Report – Sri Lanka (16 February 2015) and Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014).

   Claims to the Department

   Application for a Protection visa

10. In a statement (the statement) attached to his application for a protection visa the applicant made the following claims.

11. He lived all his life in [his home] area of [City 1]. For many years that area was under the control of the LTTE and the authorities fear that the LTTE still have the support of Tamils and Tamils are regularly interrogated.

12. In 2005 the applicant was taken by Karuna. At that time, he was a student at [a college] studying to be a [professional]. He was abducted from the rented house near the college by four men in a white van. They spoke Singhalese, but he understood that he was being taken somewhere for investigations. The applicant was detained in a room and seriously mistreated. He was interrogated and accused of collecting information for the LTTE. He told them that he was studying to be a [professional] and that he knew nothing about the LTTE. After two days, he was driven to an isolated area and released. He was told that he was ‘lucky this time’.

13. Over the years he has been questioned ‘many times’ by the authorities. It was hard to know who they were. He just obeyed their instructions because he was too scared not to. In May 2012 he was called on his mobile phone and a man said that he was from the CID. He asked the applicant where he was now and told him that they want to see him. The applicant told his parents and then left to go to a friend's home. He stayed at the friend’s house for 2 days and then went to stay with another friend. He did this ‘several times changing where he lived’ until he left Sri Lanka to come to Australia. He also changed the SIM card on his phone so that the CID could not call him.

14. If he were to return to Sri Lanka, the CID would want to punish, mistreat and kill him because he was never helpful to them ‘in relation to his brother’, and because he ran away when they said they wanted to meet him. After that last phone call, the CID went to his parents’ house looking for him. He will be someone they want to catch and if he returns he will be identified at the airport and arrested immediately. He fears that this time he will simply disappear. He is ‘a marked man’ on their system and will be identified upon his return to Sri Lanka.

15. The authorities would not protect him because he is Tamil. He is unable to internally relocate because Tamils can only live in certain parts of Sri Lanka but even in those areas they are not given State protection. He would not be safe in any area as there are problems everywhere and the Sinhalese control most parts of government. He has lived in many different addresses. This is because the owners of some of those homes that he lived in asked him to leave because of the visits from the CID.

16. The applicant also fears being harm for leaving Sri Lanka illegally and returning as a failed asylum seeker. He has already suffered torture and has scars to prove this.

17. In support of his application for a protection visa, the applicant submitted a news article sourced from TamilNet, in which it was stated that military intelligence officer of the Sri Lankan Army (SLA) frequent the houses of former LTTE members and combatants under the pretext of investigations while attempting to sexually harass the wives.

    Entry Interview

18. Following his arrival by boat, the applicant was interviewed (entry interview) by the department [in] January 2013. The information the applicant provided in connection with the interview is contained in a form (the entry form) signed by the applicant (see folios 82-90 of the departmental file). The interview was conducted with the assistance of an interpreter.

19. At the entry interview the applicant stated that his life was threatened by the CID because his brother was forcibly recruited by the LTTE in 2005. His brother has been missing since then, but the CID interrogated him because they believe that the applicant’s brother is still alive and that the applicant has connections with him. He was threatened and questioned by ‘unidentified’ people.

    Protection Visa Interview

20. The applicant was interviewed by a delegate of the Minister [in] August 2013. A written record of the interview was provided by the department to the Tribunal. Where relevant the applicant’s oral evidence to the delegate is discussed below.

    The Delegate’s Decision

21. The delegate refused to grant the visa [in] January 2014. The delegate accepted that the applicant is a Tamil from [City 1] and that he may have been questioned by the Sri Lankan authorities on a number of occasions. However, he was never, arrested, detained or harmed. The delegate did not accept that the Sri Lankan authorities have an ongoing adverse interest in the applicant for the reason of his imputed political opinion. She was not satisfied that there is a real chance of the applicant being persecuted for the reason of his race, imputed political opinion or membership of a particular social group, including failed Tamil asylum seekers. The delegate found that there is no real risk that the applicant would suffer significant harm if removed to Sri Lanka.

    Application for Review

22. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

    Pre-Hearing Submissions

23. The applicant’s representatives provided the Tribunal with a submission dated 31 March 2014 in relation to the facts of the case and the applicable law (see folios of the Tribunal file). The submission provided a summary of the applicant’s claims and comments on the delegate’s findings. It contended that the applicant will face harm because of his Tamil race; his imputed political opinion and his membership of ‘a particular social group, namely as a failed asylum seeker from a western Country’.

24. The submission referred to various reports from a number of sources including, a September 2012 research response from the Immigration and Refugee Board of Canada (IRBC) in relation to the treatment of suspected LTTE supporters; a February 2013 research response from the IRBC in relation the treatment of failed asylum seekers and individuals being picked up by white vans at checkpoints in North and East of the country; the 2012 UNHCR Eligibility Guidelines; a March 2011 UK Home Office Operational Guidance Note in relation to Sri Lanka; a 2009 UNHCR report; a February 2012 Human Rights Watch (HRW) report in relation to the treatment of Tamil deportees from the UK;  a January 2012 HRW report in relation repression of ‘media, civil society, minorities’; HRW’s 2014 World Report in relation to Sri Lanka; 12; a 2013 Amnesty International statement to the UN Human Rights Council; an August 2013 Amnesty International report on human rights violations in Sri Lanka; Amnesty International’s 2013 World Report in relation to Sri Lanka; a  2011 Minority Rights Group International report on minority rights in Sri Lanka; a March 2012 report by the International Crisis Group on the high military presence in Sri Lanka’s north and various news reports on the treatment of Tamils, dating back to 2012 and 2013, sourced from Time Magazine World, Tamil Guardian, Integrated Regional Information Networks and Guardian Online.

25. It was submitted that those with perceived links to the LTTE, which go beyond mere residency within an area previously controlled by the LTTE, may be exposed to harm. The fact that the applicant is a single Tamil male from the north or east means he will continue to be treated with suspicion. Tamils continue to experience many issues, including mistreatment and discrimination, because of their race. There is lack of freedom of speech and deep ethnic tensions prohibit a meaningful reconciliation. The Sri Lankan government is undergoing a process of Sinhalisation with an increasing presence of Sinhalese people in the north. It was submitted that those who had been detained by the government and subsequently released continue to face threats and intimidation. It was further submitted that returnees from western countries and failed asylum seekers have been targeted upon their return to Sri Lanka, resulting in many countries halting deportations. It was submitted that the applicant is likely to face torture and cruel, inhuman and degrading treatment upon returning to Sri Lanka.

    The Hearing and Further Submissions

26. The applicant appeared before the Tribunal on 30 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The representative attended the Tribunal hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

27. Following the hearing, the applicant’s representative provided a submission, addressing the issues raised with the applicant at the hearing.

    Analysis, Findings and Reasons

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

29. Overall, the Tribunal found the applicant to be a credible witness. He provided largely consistent evidence throughout the process and the Tribunal did not form any significant concerns in relation to the reliability of his evidence.

30. The Tribunal accepts that in 2005 the applicant was abducted by the Tamil Makkal Viduthalai Pulikal (TMVP), a paramilitary group also known as the Karuna group (Karuna). He was detained, mistreated and accused of collecting information for the LTTE. The Tribunal further accepts that in the same year the applicant’s brother was forcefully recruited by the LTTE. The Tribunal accepts that the applicant’s brother has been missing ever since. The Tribunal accepts that since the disappearance of his brother, the applicant has been questioned by the authorities on a number of occasions. The Tribunal accepts that he has also been subjected to physical harassment and threats. The applicant stated at the hearing that the authorities were suspicious of him because of his brother’s links to the LTTE and the fact that he used to live on a LTTE controlled area. He stated that he was questioned by the authorities in relation to his brother and other members of his family. The Tribunal accepts that, in May 2012, the applicant received a call from the CID, requesting to see him. The Tribunal accepts that the applicant had subsequently departed Sri Lanka in fear of what might happen to him. 

31. The Tribunal accepts that the authorities had entertained the suspicion that the applicant’s brother might still be alive and that the applicant’s family may have information about him. The Tribunal accepts that the applicant’s brother’s perceived and actual links with the LTTE had resulted in the authorities becoming adversely interested in the applicant. The Tribunal considers that the applicant’s brother’s link to the LTTE creates a real risk that someone investigating his background would discover these links and impute him with a pro-LTTE profile.

32. The country information before the Tribunal indicates that since the end of the civil war in May 2009 the Sri Lankan government remains concerned that the LTTE remains a threat, in spite of its comprehensive defeat.[1] The United Kingdom Upper Tribunal, in a guidance decision made in July 2013 concluded on the basis of the evidence before it that the Sri Lankan government’s current focus is on preventing a resurgence of the LTTE or any similar Tamil separatist organisation, and the revival of the civil war.[2] In its September 2014 Country Information and Guidance report on Tamil separatism, the UK Home Office stated:

    Government forces continue to detain suspected LTTE sympathisers. The threat of a revived LTTE is also used to justify militarisation in the north. NGOs recorded incidences of sexual abuse to Tamil men and women. Tamil women, especially ex-LTTE cadres, widows and the wives of disappeared or ‘surrenderees’ are vulnerable to sexual harassment, exploitation or assault by army personnel or other militias. The government has claimed that people who criticised Sri Lankan government policy or called for human rights accountability are somehow in league with pro-LTTE forces within the Sri Lankan Tamil diaspora and engaged in a ‘hate campaign’ against Sri Lanka. Persons accused of trying to revive the LTTE or commemorate LTTE cadres have been arrested as have persons calling for investigations into alleged government perpetrated war crimes. The government has also prohibited Tamil communities from holding commemorative services for their dead.[3]

    [1] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04,

    [2] GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

    [3] United Kingdom Home Office, ‘Country Information and Guidance - Sri Lanka: Tamil Separatism’, 28 August 2014, p. 44

33. DFAT, citing UNHCR Guidelines, has advised that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. According to DFAT, persons with family links or who are dependent on or otherwise closely related to former LTTE combatants or ‘cadres fall within one of the categories of persons at risk.[4]

    [4] DFAT, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.

34. DFAT further states that:

    2.35 Military and security forces maintain a significant presence in the Northern Province, including [Mannar and Mullaitivu Districts]. According to the Government of Sri Lanka, the number of personnel has been reduced by approximately 30 per cent since the end of the conflict but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. Despite the ongoing presence of the military in the north, DFAT has observed an overall reduction in military and police check-points in Jaffna and surrounding areas. While this has resulted in a greater freedom of movement throughout the north, checkpoints have been re-established from time to time, including in March 2014 due to an alleged resurgence of LTTE activity.

    2.36 One of the main roles of the security forces in the north and east, including intelligence operatives, includes monitoring of any possible LTTE activity, any form of civil resistance and anti-Government sentiment. Community members may be questioned after they have been visited by Non-Government Organisations (NGOs) or foreign government officials. Although not officially mandated to do so, in many areas military officers and personnel take a visible and active role in aspects of civilian life. This includes participating in community functions, openings of development projects such as schools and houses and undertaking community work. DFAT assesses that this quasi-official role is increasing, rather than decreasing over time.[5]

    [5] DFAT, Country Report, Sri Lanka, 3 October 2014.

1. Other reports indicate that arrests, abductions, killings, torture and of persons with certain LTTE connections (actual or suspected), continue to be perpetrated by Sri Lankan security forces and pro-government paramilitary groups, although to a lesser extent than during the civil war and its immediate aftermath.[6]

   [6] UNHCR, n1, above; Yasmin Sooka, ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka: 2009—2014’, The Bar Human Rights Committee of England and Wales (BHRC) and The International Truth & Justice Project, March 2014, pp. 18-19 < Freedom from Torture, ‘Freedom from Torture up-dated submission to the Human Rights Committee for the 5th periodic review of Sri Lanka in October 2014’, October 2014, p. 1,

2. The Tribunal is of the view that there is a real chance that the applicant could be subjected to persecutory harm because of the procedure in place for the processing of people who departed illegally from Sri Lanka.  

3. The Tribunal accepts that the applicant has departed Sri Lanka illegally and that he will be returning to Sri Lanka as a failed asylum seeker. Sources, such as freedom from Torture, have reported that a combination of residence in the UK and an actual or perceived association with the LTTE would place individuals at risk of torture and inhumane and degrading treatment. It stated that those at particular risk included Tamils with an actual or perceived association with the LTTE, including those returning from abroad.[7]

   [7] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2,

4. In its 2015 Country Report DFAT has provided information about the treatment of those returning to Sri Lanka after leaving illegally. The report states:

   Exit and Entry Procedures

   Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.

   During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

   For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.[8]

   [8] DFAT, Country Report: Sri Lanka, 16 February 2015

5. The country information indicates that a person who departed Sri Lanka illegally, as the applicant did, will be questioned at the airport while criminal and security checks are undertaken. The authorities in his home area will be notified of his return. Given the applicant’s family links to the LTTE, the Tribunal considers that there is more than a remote chance that those links will come to the attention of the authorities. Therefore there is more than a remote chance that he will be detained for an additional time where he would undergo interrogation and would be subjected to serious harm. DFAT reports:

   Article 11 of the Sri Lankan Constitution, and other laws, prohibit torture. Sri Lanka has ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture is an offence punishable by imprisonment of between seven years and 10 years.

   In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, in some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. Incidents of torture are not confined to any particular ethnic, religious or political group.

   Torture may be used to extract information or confessions from suspects. Although evidence obtained by torture is generally inadmissible in courts in Sri Lanka, for those suspects held under the PTA, all confessions obtained at or above the rank of Assistant Superintendent of Police are admissible in court.[9]

   [9] Ibid.

6. For the reasons given above the Tribunal is satisfied that there is a real chance of the applicant being subjected to serious harm, including torture and significant physical harassment and/or ill-treatment if he were to return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal finds that the harm the applicant would be subjected to involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Act. The Tribunal is satisfied that the applicant’s imputed and actual political opinion is the essential and significant reason for his fear of persecution as required by paragraph 91R(1)(a) of the Act. The Tribunal finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason. The Tribunal is satisfied that the applicant does not have adequate and effective state protection available to him as the harm he fears is from state actors.

7. The Tribunal has considered whether the applicant would be able to relocate within Sri Lanka to avoid the harm he fears. In the applicant’s circumstances he would be returning to Sri Lanka having left illegally and as a failed asylum seeker. As set out above, the Tribunal accepts that he is very likely to be questioned by the authorities and enquiries made in relation to his background and there is a real chance that he would be subject to interrogation and detention because of his family’s real and/or perceived links to the LTTE. As the Tribunal considers that the applicant is at risk of persecution during detention immediately upon his return to Sri Lanka the issue of relocating to avoid the harm does not arise. Therefore the Tribunal is satisfied that the applicant’s fear of persecution is well-founded. Given these findings the Tribunal does not find it necessary to consider other aspects of the applicant’s claims.

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

   DECISION

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

   Shahyar Roushan
   Senior Member