1402350 (Refugee)

[2016] AATA 3366

1402350 (Refugee) [2016] AATA 3366 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1402350

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sean Baker

DATE:22 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2016 at 6:10pm

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

INTRODUCTION

1. [The applicant] is a citizen of Sri Lanka.  He was born and spent his entire life in [Town 1] on the west coast of [Sri Lanka].  He said that he worked as a fisher in Sri Lanka. At his entry interview he said that he came to Australia to be able to afford his own house and to make his own life here. The applicant then applied for protection and provided a statutory declaration in which he claimed that his family had been involved in the local fishing committee, that [in] 2012 there was a protest in [Town 1] about the fuel price crisis which severely affected the fishing community, that he and his father were at the front and his father was hit by an army officer and then the applicant hit the officer. The applicant then went into hiding until he departed Sri Lanka for Australia. The army came looking for him and threatened him.

2. [The applicant]’s application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether the applicant has a well-founded fear of being persecuted 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 his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka?

   [The applicant]’s claims

3. [The applicant] is [age] years old. He is Sinhalese and a Catholic.  In his application for a protection visa he said that he had completed [number] years of schooling in [Town 1], that he had worked from the time he left school until 2012 doing various fishing related jobs and in [industry] with his uncle, and that he had lived at the same address in [Town 1] until he departed Sri Lanka for Australia in July 2012.  

4. At the entry interview [the applicant] said that he came to Australia because of problems, he wants to make his own house; he came pawning his house that’s why he came. He said he wanted to be able to build his own house here and to make his own life here. He was asked twice if there was any other reason he left Sri Lanka and he said no. He said that he and his family have been involved in a rally as part of the fisheries summit to bring the oil prices down, his mother’s [relative] had a gunshot wound to her[body part], and army people came and shot people during the rally. He said he was a member of the fisheries group, just helping out fishers. He said that the police and security organisations had not impacted on his day to day life in Sri Lanka.

5. In his statutory declaration dated 20 May 2013 provided with his application for protection, he claimed that his family had been involved in the local fishing committee in [Town 1] since 2006, his mother being [official] and sometimes filling in for[another official], and his family all being members. He said that in 2012 there was a fuel price crisis in Sri Lanka which severely affected the fishing community. He said that [in] 2012 there was a protest in [Town 1] about the fuel price crisis. The applicant and his father were at the front because they were well-known in the professional fishing group. As they were walking, army officers tried to block them. They insisted that they be allowed to keep walking. The applicant’s father was hit by an officer and then the applicant hit the officer. This was the start of the protest getting out of control, with stones thrown at the army and the army reacting violently; the army started shooting and shot a friend of the applicant’s that day. The applicant says that there were around 200 army officers and only around 100 protesters. People dispersed and the applicant and his family went home.

6. When they arrived home, his mother sent his brother and the applicant into hiding when she found out what had happened. The army came that night to their house to look for him. They hit his father and told his father to tell them the applicant’s whereabouts. His family has never told the army where he is. The applicant was in hiding for around 6 months. He stayed with a close friend [for] three months and for the other three with his girlfriend in [location]. His brother went home but was not threatened with harm as the applicant was the one who threw the punch at the protest and they are after him. The army kept coming to the house and asking for him. They kept saying ‘we will kill him if we ever come across him’. They would go to the house on and off, every few weeks. They have since found out that he has left the country, he does not know how they found this out. They have said ‘if he ever comes back in to the country, we will kill him.’

7. He fears the army and authorities generally as they have harmed him, assaulted his father and threatened him. This happened because he protested and has been outspoken against the government. He has assaulted an army officer and that then sparked off a riot at the protest. These actions show the government that he is against them and the government (army) wants to find him and punish him. He has never been formally charged with any offence. They will kill him before they charge him. He cannot relocate as the army and authorities can find him wherever he goes in the country.

8. A statement provided in Sinhalese with a translation also includes a detail that the applicant claims his mother had to mortgage their house to get money, the journey to Australia for the applicant costing 700,000 rupees.

9. The application was refused and the applicant applied for protection. He did not include a copy of the delegate’s decision with his application for review.

   Discussion of [the applicant]’s claims

10. At the hearing the applicant provided a number of photographs and newspaper articles about the fuel protest and shooting. He claimed that some of the photos showed him, his uncle and his mother.

11. He said that his parents [and siblings] were all living in [Town 1] still. He said that there is a person who he is planning to marry, his girlfriend in [location]. He said that he had finished his education at year [level] or [level]. He said that he had been a fisher, fishing at sea with his uncle. He said that his father and brothers also did this work. I asked if his mother worked and he said that she was [an official] of the fisheries committee in that area. The applicant said he was working in Australia in a [factory].

12. I asked the applicant to tell me why he feared returning to Sri Lanka. He said that his family was involved in the local fishing committee. I asked what that involved and he said that they are all members of the committee and his mother is the person who is holding [an official] post. I asked what that involved and he said that the main idea of the committee was to have meetings and facilitate loans, and if there are any crises, the committee will act on behalf of the fishers’ community, in a protest or rally. He said that each village had a committee like this. I asked him what role his mother had and he said that she was [an official] or [different official] – it was more or less the same thing. I asked what she did in this role and he said she was the person who was [details deleted] and things like this. I asked if there was anyone above her in the committee and he said that there was but that person left and then his mother took over all those responsibilities. He said he did not know how to express his position but his name was [name]. I noted that in his statement he had said that his mother had stood in for [another official] when he was not available, and asked who this person was. He said he did not know how to explain it very well but he knew this was a person above, and she would write and give all this information to him. I asked if this was [name] and he said it was.

13. I asked if the applicant had had any difficulties with the authorities prior to the fuel crisis events in 2012. He said that even before 2012, there was a very similar fuel crisis. I asked when that was and he said he could not quite remember, maybe 2008 or 2009. I asked him what happened to lead to the fuel crisis in 2012. He said that this happened [in] 2012. I noted I was asking him about what led to this, not yet about the event itself. I asked what led to this. He said that they were trying to protest for the fuel crisis, and went on the road, but when they went out the police and army came and assaulted them, his father was assaulted once by the army and that was where it all started. I asked him to go back before this and tell me what happened to lead to the protest. He said that the reason was because the fuel prices went up. He said the government put them up. I asked him how much the prices went up and he said he could not remember as a significant time had passed. He said that when the fishers pump fuel, they don’t make much, and when the price goes up their margin goes down. I asked if he could remember when the government put up the price of fuel before the protest. He said it was during the same month, maybe around the 10^th or 15^th. He said that during that month because the fuel prices were so high they did not go to sea, they were just doing protests.

14. I asked him to tell me about the [protest]. I asked who was there from his family. He said that his mother and father and his brothers were there, and also most of the members from the fisheries committee were there as well. He said that his family participated for all the meetings before that as well. he described the protest as being near to the beach close to his area, about 1 ½ to 2 kilometres from their home. I asked where he was in this protest and he said he was upside of the protest, his father and he were right in the front. I asked where his mother and brother were and he said that they would have been in the group but his father and he were the furthest forward. I asked why they were not all together and he said as there were about 200 people so it was hard to be a group. I noted that he had claimed his mother was [an official] or [official] and asked if this wouldn’t mean that she would have been up the front. He said because she is a female she was not. I asked how many there were in the protest and he said maybe200. On the other side they had about 400, there were 200 on his side and they were trying to merge together and become one larger protest and go onto the main road.

15. I asked what happened then. He said that the police were trying to stop them from coming on to the main road but there was too large a group and they could not stop them and then the police got backup from the army as well. Then they had this scuffle with his father, as they hit his father and then the applicant assaulted one of the army personnel and then there were rubber bullets being fired, as soon as they started shooting then they started using real bullets as well. I asked how he could tell that they used rubber and then live bullets and he said there were some that hit walls and his [mother’s relative] had one bullet into her[body part], and his friend got one bullet [and] he died. I asked what his name was and he said [name]. The applicant said that [his friend] was taken to the hospital by the applicant’s sister-in-law’s father. He then said he was taken to hospital by the uncle that the applicant goes fishing with.

16. I asked the applicant what happened then. He said that after that they did not proceed further but because of fear his mother took him and his [brothers] into a known home away from their own home. He said they went to a relative’s house, a place called [name]. He said they went there and were kept there as those people were searching for them. I asked who and he said the army. He said that there was a curfew so nobody could go out. I asked what happened the next day and he said that that same evening a white van came to his father’s house and they threatened to put forward himself and that was apparently from the army.

17. I asked the applicant how, in the confusion of the protest turned into a riot that he had described, they would have been able to identify that it was him who pushed over the army person. He said that there was an army camp in his village and a police headquarters in the village as well, so they knew. He said that he and his father were always right in front and so they know who they are. I asked if the army person was injured and he said he was not injured. I noted that if he was not injured then threatening the applicant with death seemed an over-reaction. He said that it was because this incident had precipitated the throwing of stones and the shooting, and because the army officer had been humiliated in front of others. I asked if there had been threats or white vans sent to the homes of those who had thrown stones from the protest. He said that maybe because normally nobody assaults an army person, maybe the army person was ridiculed; maybe he wanted to get back at the applicant.

18. He said that he then went into hiding in various places and then his girlfriend’s mother suggested there was a boat going, so he left. He said he was in hiding for 3 ½ months and only came out for the funeral of his friend who had been killed.

19. I asked the applicant which times the army had come looking for him. He said on the same night, they had come to his house and asked for him. Because he was not there they assaulted his father and threatened that he must produce the applicant as soon as possible. I asked what the threat was, what they would do if this was not done. He said that they threatened his father to give the applicant to the army; because they were ridiculed in front of six hundred people they did not like it and said they are going to kill him. I asked if they had done anything else to his family or brothers. The applicant said that they were not with him as on is in the ancestral house and one is in his wife’s house. I asked how many times the army had searched for him. He said three to four times they were searching around the area, and have gone to his uncle’s house. The applicant said that he was in hiding in a few houses, he was in [another location] as well.

20. I asked the applicant about several inconsistencies between his recollection of the protest [in] 2012 and news reports. I noted that reports indicated that there were [over 1,000] protestors at the march that day, that the reports mentioned police being there and firing on the crowd, but not army, and the reports mentioned that teargas was fired at the protestors but the applicant had not mentioned this in his descriptions.[1] I noted that his caused me some doubts that the applicant had been at this protest. The applicant said that from memory they had about 100 to 200 from their side and there were about 400 other protestors from the other side which joined them, so altogether he thought there were about 600, he highly doubted that there were [over 1,000] people. He said the police and army were about 200. I noted that there appeared now to be three figures – in his statutory declaration he had said that there were 100 protestors only, now he claimed 600, and the news report said [over 1,000]. He said that the 100 only in his statutory declaration referred to only the members of the Fisheries committee. I noted that this did not appear to be what he had said in his statutory declaration where he said there were around 200 army officers there that day and there were only around 100 protestors. He said that you could see there were army there from the photographs he had provided, which clearly showed people in camouflage uniforms. I noted that certain units of the Sri Lankan police wore camouflage uniforms.[2] He agreed but said that the camouflage uniforms worn by the police were lighter. I asked why he had not told me that there was teargas fired before they fired bullets. He said yes they did do teargas, rubber bullets and real bullets, all three. I asked again why he had not described this before. He said that it is obvious that any protest they spray water and do teargas.

    [1] [Information deleted].

    [2] See Sri Lanka Police, Specialized units,

21. I then turned to paragraph 6 of his statutory declaration where he said that when he was interviewed by the Department in his entry interview, he did not disclose the real reasons why he fears returning to Sri Lanka because he was afraid that if he disclosed everything to the Australian authorities, and if they ever told the Sri Lankan authorities, his family would face severe problems back home, and he had also just arrived and was confused and fearful. He stated that at the time of his statutory declaration he now felt comfortable enough to disclose the true reasons why he fled Sri Lanka. I asked him to explain why he had not disclosed the real reasons at his entry interview. He said he thought if he divulged information he could get into trouble, if he divulged that his mother was [official] he thought there could be some harm to his family. I asked if he had been told that the information he gave was confidential and he said he had been told, but he could not trust that information. I asked why he did now and he said that when he looks at Sri Lanka he feels that the information he divulges does not go back to Australia.

22. I indicated to [the applicant] that I was going to give him some information which I considered would be the reason, or a part of the reason, for affirming the decision under review.  I indicated that I would explain the information to him so that he understood why it was relevant to the review and that I would also explain the consequences of the information being relied upon in affirming the decision under review.  I indicated to him that I would ask him to comment on or to respond to the information.  I indicated that if he wanted additional time to comment on or to respond to the information he could tell me and I would then consider whether to adjourn the review to give him additional time.

23. I put to the applicant that he had been interviewed for his entry interview conducted [around] a month after he had arrived in Australia. I put to him that he had been told at the start of that interview that he was expected to give true and correct answers to those questions and was told that if the information he gave at any future interview was different to what he said then, this could raise doubts about the reliability of what he had said. I put to him that he had been told that the Department is careful to protect the privacy of all information given during the interview and that the information will not be made available to authorities in his country of habitual residence. I asked if he understood the information and he indicated he did. I then explained to him that this information was relevant because it may indicate to me that he was told that his information would be treated confidentially, and that he was told that he should answer questions truthfully so as not to lead to inconsistencies later. I put to him that if I relied on this information, it may lead me to find that what he had told me at hearing were not the reasons he did not wish to return to Sri Lanka, but that the information provided in his entry interview may be what has actually happened. The applicant indicated he understood why the information was relevant to the decision. He said that at the entry interview he said what he said as he was planning to stay here as then there would not be any issues for his family members, so then there was no trouble to his immediate family. He said that he had faith that if he stayed here his problems were going to get solved. I noted that he could respond in more detail after I had put further information to him.

1. I put to the applicant further information he had given in his entry interview:

   ·This interview was conducted a month after he arrived in Australia;

   ·he specified his mother’s occupation as ‘homemaker’;

   ·when asked why he left Sri Lanka, he said “I came because of problems, I want to make my own house. I came pawning my house that’s why I came. I want to build my own house here. I don’t think I will ever be able to have my own house if I stay in Sri Lanka.” The question was asked “why don’t you think you will be able to have your own house” and the applicant responded “there’s not enough money.” The question was asked “Is there any other reason why you left SL” and the applicant said “no.” The question was asked “why did you come to Australia” and the applicant said “To make your own life here.” The question was asked “What would you do here?” and the applicant said ‘get a job, I’ll do anything I can get.’ The applicant said he thought if he were able to get a job he would be able to earn enough money. He said that he had heard that it is good here. The applicant was asked again is there any other reason he left Sri Lanka and he said “no.” The interviewer noted that he had said that the house the applicant pawned was his mother’s house, and was asked if he could not live in that house, and the applicant said that after his [one] brother gets married his brother gets that house, so the applicant has to live in his own house.

   ·The applicant was asked if any members of his family were associated or involved in a political group or organisation and the applicant said “no.”

   ·The applicant was asked if he or members of his family were involved in any activities or protests against the government and he said “yes, we wanted to do a rally as part of the fisheries summit to bring the oil prices down. My mother’s [relative] had a gunshot wound to her[body part], the army people came and shot people during the rally. I can’t remember the date this was, it was maybe last year.”

   ·The applicant was asked if he was a member of any particular social or religious group and he said “yes, only the fisheries group, just helping out fishermen, we attended meetings once a month.”

   ·The applicant was asked whether the police or security impact on his day to day life in his home country and he said “no.”

2. I asked if he understood the information and he indicated he did. I then explained to him that this information was relevant to my decision because it may indicate to me that the claims he had made during the hearing were not true, may indicate that the interview was conducted a month after his arrival, and so his claims to have been recently arrived and scared and stressed may not be true, the information that his mother was a homemaker may indicate she was not [an official] or [official] of the fishing committee and the reasons given at the entry interview for why he chose to come to Sri Lanka may indicate that he came to Australia for economic opportunities, not because he faced a real chance of harm. I put to that the fact he disclosed that he and his family were involved in a fuel price rally, and were part of the fisheries group, may lead me to doubt the claim he had made that he didn’t disclose information in his entry interview about his later claims because he didn’t want his mother or family to get into trouble. I put to him that all of this information along with his answer that the security and police had not impacted on his day to day life led me to doubt that the army or anyone else had any interest in him. I put to him that if relied on this information may lead me to find that some or all of the events he claimed had happened have not happened, that he has not been searched for by people in a white van or the army, that he was not in hiding, and that the reasons he gave in his entry interview are real reasons he came to Australia and may lead me to find that there may not be any reason why he would face harm on return to Sri Lanka. I noted that, as I had mentioned earlier, the applicant was entitled to seek additional time to comment on, or to respond to, the information I had just given him.  He indicated that he did not need more time.  He said that he had already mentioned to me that this was the reason why he had said what he had said at the entry interview. He asked who was responsible if he faced an issue on return. I explained to him that I had to consider whether there was a real chance that he would suffer persecution, and explained what this meant, or a real risk that he would suffer significant harm, and explained that as I understood the questions I had to answer, this did not require a guarantee but that the chance or risk of harm was remote. He reiterated that he had said these things as he had wanted to protect his mother and family. I indicated to him that I would take into account what he had said but I put to him that he had in fact mentioned the rally, and his and his family’s membership in the fisheries committee, which as far as I could see meant that if this information was disclosed, and the events he claims had happened had in fact happened, the Sri Lankan authorities would be able to identify who he was, who his family was, and the role of his family and mother in what he claimed had happened. He said that although he mentioned that there is a rally he did not mention who attended. I noted that he had indicated that he and his family had gone. He said that he had said they went but he did not say that anything happened. I noted that he had said that his mother’s [relative] was shot in the[body part], and the army people had come and started shooting. He said that even though the army knew they went to the rally they didn’t know that his mother was [an official]. I asked how this could be as my impression was that the fisheries committees were public organisations. He then said that he and his father would be known as at all those protests, his family does participate, and they are the people that are right in the forefront.

3. The applicant said that there was only one thing that he was telling me all the time, that it is hard for him to live there, that is what he is telling me. He said that if I made a negative decision then he will have to think that his fate is going to be bad.

4. I then asked the applicant to confirm whether the army or police had charged him with anything. He said they had not. I asked if assaulting an army officer would be an offence and he said it would be. I asked then, why the army had not charged him with anything. He said that if they just made a police entry, that could be resolved easily, but they wanted more from him than an entry in the police, because he humiliated them. They were not following the proper channels but were looking for him directly to harm him.

5. I asked what he feared on return. He said that he feared he would be harmed by the army, and if he gets killed and there is a protest about his death, he fears that his brothers will get harmed. I asked him to explain this and he said that if they went to a protest about his death or harm then they would be harmed. I noted that this appeared very speculative possible harm to his brothers, relying on a chain of inferences which I was not sure were supportable. The applicant said this is what would happen. I then asked him who would harm him if he returned and he said mainly the army, the army and could be the police.

6. I then told the applicant that I would like to share with him some country information about the situation in Sri Lanka. I indicated to the applicant that I accepted that if he returned to Sri Lanka the authorities would know that he had sought asylum in Australia.  I put to him that people who did not return to Sri Lanka voluntarily were interviewed at the airport by various Sri Lankan Government departments.  I put to him that the Australian Department of Foreign Affairs and Trade assessed that returnees were treated according to standard procedures, regardless of their race or religion, and that returnees were not subject to mistreatment during their processing at the airport.[3]  I put to him that it was difficult to accept on the basis of the information available to me that there was a real chance that he would be persecuted because he would be perceived as holding a political opinion opposed to the Sri Lankan Government because he had applied for a protection visa in Australia.  The applicant said that as far as he knew the protection was only until he went out of the airport, from what he had heard as soon as he gets out then they will take him into custody or put him in jail for 14 days. I noted this and indicated I would provide further information about this concern of his.

   [3] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.29-5.31.

7. I referred to the fact that the applicant had said that he had left Sri Lanka illegally. I put to him that the information available to me indicated that he would therefore be charged under the Immigrants and Emigrants Act of Sri Lanka with offences relating to his illegal departure. I asked the applicant if he had been involved in organising or facilitating people smuggling, or been charged with any offence. He responded no to both questions. I put to him that in that case the Australian Department of Foreign Affairs and Trade had advised that in most cases people suspected of having departed Sri Lanka illegally had been arrested by the police at the international airport in Colombo.  They had been transported to the closest Magistrates Court at the first available opportunity and in most cases they had been granted bail immediately by the magistrate.  I put to him that the Department had said that as of July 2015 no returnee who had merely been a passenger on a people smuggling boat had been given a prison sentence for departing Sri Lanka illegally but that fines had been issued.[4]  I put to the applicant that I might take the view that this was the result of the enforcement of a law which applied generally in Sri Lanka and that it did not involve discrimination for one or more of the five reasons set out in the Refugees Convention. I put to the applicant that the information available to me also suggested that he would only be held in prison for a brief period, for example because a magistrate was not available due to a weekend or a public holiday.[5] The applicant said that another person who came with him on the boat was sent back and he was put on remand. I asked for how long and the applicant said for 2 or 3 days. I explained to him that I accepted that prison conditions in Sri Lankan prisons were poor, but that if he were remanded for such a short period of time this may not reach level of serious or significant harm. I emphasised to him that I was looking at whether there was a real chance that he would be persecuted for one of the five Convention reasons or a real risk that he would suffer significant harm. I put to him that the Australian Department of Foreign Affairs and Trade assessed that the risk of torture or mistreatment for the majority of returnees was low.[6] The applicant responded and said that if he got a fine, and if he was given bail, then that is recorded against his name, and the people who want to harm him could get to know that. I noted to him that if I did not accept that the army or anyone else wanted to harm him, I would find that this would not happen and would not lead to harm to him.

   [4] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraphs 5.32-5.33.

   [5] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 5.32; ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

   [6] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 4.23.

8. The applicant then said that he felt that that if he went back to his home town he would be harmed. I explained that I needed to consider what would happen, rather than conjecture or surmise, and that the country information we had been discussing may lead me to consider that he would not face a chance of harm. I noted that if I came to the conclusion that country information does not indicate that people in a similar situation are harmed, I might take the view that he would not face a real chance or risk of harm. He said that he had given all the information about my fishers background, if he I still could not get it through then he cannot do anything else. I noted that he had claimed that he would be perceived as against the government because of the protest and his role. He agreed and said that his family are the people who go forward to win their rights. I put to him that he did not claim to come within any of the categories of people which country information set out may be at risk on return for their actual or imputed political opinions, such as individuals who were, or were perceived to be, a threat to the integrity of Sri Lanka as a single state, journalists or human rights activists, individuals who had given evidence to the Lessons Learned and Reconciliation Commission and people against whom there was a court order or arrest warrant.[7]  I put to him that I might not accept that he held an actual political opinion contrary to the government, nor that there was a real chance or a real risk that he would be imputed with a political opinion contrary to the government and harmed by the Sri Lankan authorities if he returned to Sri Lanka. He said that the only think he could said if that so far he has been allowed to live in Australia, and he requested to at least stay until these problems have died down. I asked when that would be and he said he did not know. I noted that it had been four years since the rally.

   [7] See GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), upheld by the Court of Appeal in MP and NT (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829.

9. I asked him if he feared harm for any other reason on return to Sri Lanka. He said he could only say that he didn’t have any plans to go to Sri Lanka and he felt he would be harmed if he went there. He said that he would appreciate if he could live here some more and he liked this life.

   Conclusions

10. The applicant claims that his fears of return stem from the assault of his father by an army officer, followed by the applicant assaulting the army officer at the fuel rally [in] 2012, which he believes was seen as a humiliation and has led to threats on his life from the army. As I noted to the applicant, I found this claim somewhat implausible - if he had assaulted an army officer as claimed I do not accept that he army would not seek to charge him with this, which as he agreed, would be a criminal matter. The applicant was very clear that they had not charged him, but were seeking to have revenge on him outside the criminal justice system by coming unofficially and harming or killing him. He said that he thought they wanted to do this because he had humiliated the army officer, and perhaps by extension the army, by hitting the officer. The officer was not harmed, he said, and I find it doubtful that the applicant would be targeted for ongoing harm on the basis of such a comparatively minor assault, even on an army officer. This concern is particularly significant because of the length of time that has elapsed. Even if this event occurred, and a group of army officers did seek to harm him, I find it extremely implausible that they would continue to be motivated to harm him four years after this comparatively minor assault. Further, his evidence about the rally changed over time and was in some regards inconsistent with the articles I was able to find about this rally, as set out above.

11. Significantly, and as discussed with him at length at the hearing, his claim to have assaulted the army officer was set out this claim in his statutory declaration and maintained by him since then, but the applicant did not refer to or mention this assault in his entry interview. The applicant has given various explanations for this omission. I do not find any of these explanations convincing, for the following reasons.

12. In his statutory declaration the applicant addresses the omission. He says that when he was interviewed by the Department in his entry interview, he did not disclose the real reasons why he fears returning to Sri Lanka because he was afraid that if he disclosed everything to the Australian authorities, and if they ever told the Sri Lankan authorities, his family would face severe problems back home, and he had also just arrived and was confused and fearful. He stated that at the time of his statutory declaration he now felt comfortable enough to disclose the true reasons why he fled Sri Lanka. At hearing I asked him to explain why he had not disclosed the real reasons at his entry interview and he said he thought if he divulged information he could get into trouble; that if he divulged that his mother was [official] he thought there could be some harm to his family.

13. I put to the applicant the relevant content and details of his entry interview. On putting to him that he was told at the start of that entry interview that his information would be protected, and that he was expected to give true and correct answers and warned that if he did not so it may raise doubts about the reliability of what he said, he indicated he understood, and said that at the entry interview he said what he said as he was planning to stay here as then there would not be any issues for his family members, so then there was no trouble to his immediate family. He said that he had faith that if he stayed here his problems were going to get solved. I put to him further information, again that the interview was conducted a month after his arrival in Australia, that he had specified his mother’s occupation as ‘homemaker’, and that he had been questioned extensively about his reasons for leaving Sri Lanka and he focused on economic reasons, and on being asked twice if there were other reasons for his leaving he had said ‘no’. The applicant had said that neither he nor his family were associated with a political group or organisation. He had disclosed that he and his family had attended a rally against the oil price rises, his [mother’s relative] had been shot in the [body part] and the army people had come and shot people during the rally, but he could not remember when this happened. He disclosed that he was a member of the fisheries group, just helping out fishermen they attended the meetings once a month. He was asked whether the police or security impacted on his day to day life and he had said no. He indicated he understood, and said that he had already mentioned that the reason he had said these things was so that his family did not get into trouble if this information was disclosed to the Sri Lankan authorities. He said he had said these things as he had wanted to protect his mother and family. When I reiterated my concern that he had in fact mentioned the rally, and his and his family’s membership in the fisheries committee, which as far as I could see meant that if this information was disclosed, and the events he claims had happened had in fact happened, the Sri Lankan authorities would be able to identify who he was, who his family was, and the role of his family and mother in what he claimed had happened, he said that although he mentioned that there is a rally he did not mention who attended. I noted that he had indicated that he and his family had gone. He said that he had said they went but he did not say that anything happened. I noted that he had said that his mother’s [relative] was shot in the[body part], and the army people had come and started shooting. He said that even though the army knew they went to the rally they didn’t know that his mother was [an official]. I asked how this could be as my impression was that the fisheries committees were public organisations. He then said that he and his father would be known as at all those protests, his family does participate, and they are the people that are right in the forefront. The applicant then said that there was only one thing that he was telling me all the time, that it is hard for him to live there, that is what he is telling me.

1. I accept that it may have been hard for the applicant to live in Sri Lanka, but I do not accept it is for the reasons claimed. The applicant has provided a range of explanations for the discrepancies between his responses at the entry interview and his claims from then on. As I discussed with him, I do not think that these reasons are logical or plausible. The applicant maintains that he wished to protect his family, and his mother in particular, from any harm that might arise if the Sri Lankan authorities became aware of what he had claimed in Australia. I do not accept the central premise of this claim, which is that the applicant was afraid that this information would be disclosed. At the start of the interview he was told what I consider two important things – firstly, that his responses should be true and correct, and that discrepancies later on may lead to doubts about the reliability of what he said, and secondly that his information would be treated in confidence. The applicant had been in Australia by this point for a month, and would have had some opportunity to raise any concerns about these matters. I do not accept that the applicant was under a misapprehension that his information would be provided to the Sri Lankan authorities. But even if this were the case, then his answers at the entry interview do not, in my assessment, bear out this explanation. He claims that he did not tell what really happened because he did not want his family and in particular his mother to be harmed by the Sri Lankan authorities. But in my assessment, at his entry interview he has disclosed so much about the claimed incident that, had it occurred, and if it were provided to the Sri Lankan authorities, his responses at the entry interview would be sufficient for the authorities to determine who he was, his family, and his mother. I do not accept that providing some details around the claimed event, but not the specific details of the event itself, or that his mother was [an official] or [official] of the village fisheries committee, would protect them or him. I consider that a more likely explanation is that the evidence he has given at the entry interview are true – that he and his family attended the protest (and I take this protest, where his [mother’s relative] was shot in the[body part], to be the fuel price protest he speaks of, because he has not detailed any other protest that he attended, but spoke vaguely of others), that his [mother’s relative] was shot in the [body part] but that he and his family did not suffer any further injuries, that the authorities shot at the protest, but that this was all that happened, that he and his family are members of the fisheries committee, and that neither he nor his family have any involvement with a political group or organisation, nor that the authorities have impacted on his day to day life. I find his statements in his entry interview that there was no other reason apart from economic reasons for him to leave Sri Lanka to be significant – he was asked twice this question and responded twice in the negative. I have also considered his claim that he was recently arrived and scared and stressed. I accept that the applicant may have been stressed and had a level of apprehensiveness of what would happen to him and the process. but the interview was conducted a month after he arrived, and I do not accept that this explanation explains in whole or in part the answers he gave at his entry interview.

2. I accept the guidance in policy that care should be taken in relying on entry interviews as they often occur soon after arrival, applicants may be anxious, may not understand the significance of giving information, the entry interview is not for the purpose of obtaining details on asylum claims, and applicants may be unwilling to reveal their whole story or details for fear of putting their family or friends back home in danger or because they mistrust authority. I have considered this policy guidance and I have thought carefully about the reasons the applicant has given for why he said what he said at his entry interview. But as I discussed and put to him, it appears from reading his entry interview to be a clear, coherent and logically consistent account. He was questioned at length about his reasons for wanting to come to Australia and expressed these at length, without mentioning any of the concerns that he now claims are the reasons he left. He indicated that he had attended the rally, but that the police or security had had no impact on his day to day life. Having given careful consideration to all of the evidence and taking into account everything raised and discussed above, I find that the reasons he gave for coming to Australia, being economic opportunity, are the truth, and I do not accept that he had the problems with the army and others which he has since claimed to have had.

3. I have had regard to the photographs tendered by the applicant at the hearing. These appear to have been taken by someone else. The applicant claimed that he was in several of the photographs of several men walking on a road, and that his uncle was walking next to him. He did not indicate that his father was in these or other photographs. There are no army or police officers in these photographs. Most of the photographs showed people and in some there are police or army officers present. There are a number of photographs which show the aftermath, and the applicant claims that the person who was shot and killed is being carried or attended by members of his family. He provided newspaper articles about the fuel protest. These are in Sinhalese. The applicant also provided copies of documents which he claimed demonstrated his and his family’s involvement with the village fisheries committee. These documents are in Sinhalese. The documents were not translated. However, even at their highest, these documents do not establish what the applicant claims they do. I am willing to accept, on the basis of these documents, that the applicant and his uncle were at the fuel protest. I am willing to accept that his uncle and mother may have been assisting with or associated with or near the body of the person killed and photographed. I am willing to accept that he and his family are members of the village fishing committee, and that his mother may have some role with the committee. But that is all. The photographs, newspaper reports and documents do not establish, or purport to establish, the key parts of his claims which he indicates lead to him fearing harm. They are also not incompatible or run counter to any of the information he gave in his entry interview.

4. For the reasons given above, while I accept that the applicant was at the fuel protest rally on [in] 2012, I do not accept for the reason above that his father was hit by an army officer or anyone else, and that the applicant hit an army officer in retaliation or at all. I accept that the applicant may have known the person killed at the rally, and that his uncle and mother may have assisted with bringing this person to the hospital. I accept that the applicant and his family were involved in the village fisheries committee, and I accept that his mother may have had some role in the committee, such as [official] or[official], not incompatible with her description by him as a ‘homemaker’ in his entry interview.

5. For the reasons given above, I do not accept that the applicant’s father was assaulted by an army officer, or anyone else at the protest. I do not accept that the applicant assaulted an army officer or anyone else at the protest, in retaliation of for any other reason. I do not accept that this interaction was the start of the protest getting out of control. I do not accept that he and his brother went into hiding after the rally. I do not accept that the army came to his house the night of the rally searching for him and assaulted his father and threatened the applicant. I do not accept that a white van has come to the applicant’s house and men have asked for him. I do not accept that any authorities or proxies of the authorities have come looking for the applicant for reasons of his assault on an army officer (which I have found did not occur) or for any other reason. I do not accept that the applicant has been threatened by anyone. I do not accept that since leaving Sri Lanka anyone has come looking for him. I do not accept that the applicant’s family’s membership of the village fisheries committee gives rise to any harm or chance of harm – the applicant has not claimed this, and the documents in Sinhalese indicate that there are a large number of members of this village committee and no evidence that these people are harmed for this reason. I do not accept that the applicant’s mother having some role in the committee, such as [official] or[official], not incompatible with her description by him as a ‘homemaker’ leads to a chance of harm to the applicant or to her or to anyone in the family – again the applicant has not claimed this but has implied that the assault by him on the army officer (which I have found did not occur) may lead to his mother being harmed. I do not accept this. The applicant in his entry interview said that he had pawned his house to come to Australia. However, when asked for details he said that his [brother] would get this house. In a later statement he claimed that his mother had to mortgage their house to get money, the journey to Australia for the applicant costing 700,000 rupees. The applicant did not raise these issues at hearing. I accept that the applicant may have used money from his family or from the family home to journey to Australia. However, he did not raise this as a reason or part of the reason why he feared harm on return and on the evidence before me I do not accept that the applicant has mortgaged or pawned the family home.  The applicant claimed in his statutory application that because of his involvement in the protest, his outspokenness against the government, and his assault on the army officer that then sparked off a riot at the protest; he would be imputed with an anti-government opinion. As I do not accept that he assaulted the army officer I do not accept that he would be imputed with an anti-government opinion for this reason, or for sparking off a riot which I do not accept happened. As I discussed with him at hearing, he did not fall into any of the categories of persons who may be at risk of return for their actual or imputed political opinion. I accept that he was present at the protest, but I do not accept on the evidence before me that this would impute him with an anti-government profile; there is no basis to establish this. I do not accept on the evidence before me that he has been outspoken against the government.

6. I do not accept on the evidence before me that, if [the applicant] returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be arrested, harmed or killed because of his assault on an army officer, his family’s role in the fisheries committee, the role of his mother, or any actual or imputed anti-government political opinion.

7. During the hearing I discussed with the applicant what may happen to him on return to Sri Lanka. I discussed what would happen to him if he was returned involuntarily including being interviewed at the airport, and noted that on the information it appeared he would not be harmed in this process, and it did not appear to me that there was a real chance he would be persecuted because he would be perceived as holding a political opinion opposed to the Sri Lankan Government because he had applied for a protection visa in Australia.  He said that as far as he knew the protection was only until he went out of the airport, from what he had heard as soon as he gets out then they will take him into custody or put him in jail for 14 days. For the reasons given above I do not accept the claims made by the applicant for why he fears harm and believes that some in the army, or the authorities more generally have an interest in him and I do not accept that there is a real chance that he will be arrested, harmed or killed for the reasons he has given if he returns to Sri Lanka. I have considered his evidence and I have weighed this against the country information. I have regard to the assessment of the Australian Department of Foreign Affairs and Trade and I do not accept that, if the applicant returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of any political opinion imputed to him or because he has sought asylum in Australia.

8. I discussed with him his illegal departure from Sri Lanka. He said he had not been involved in organising or facilitating people smuggling, or been charged with any offence. I noted with regard to the concern he expressed above that he may be held in jail for 14 days that the period he would spend in remand appeared likely to be much shorter than this, a number of a few days. The applicant said that another person who came with him on the boat was sent back and he was put on remand. I asked for how long and the applicant said for 2 or 3 days. I explained to him that I accepted that prison conditions in Sri Lankan prisons were poor, but that if he were remanded for such a short period of time this may not reach level of serious harm. I put to him that the Australian Department of Foreign Affairs and Trade assessed that the risk of torture or mistreatment for the majority of returnees was low.[8] The applicant responded and said that if he got a fine, and if he was given bail, then that is recorded against his name, and the people who want to harm him could get to know that. as I have found above, I do not accept that the people he claims want to harm him do in fact want to harm him, and therefore, having regard to my findings of fact above, I do not accept on the evidence before me that there is a real chance that he will be singled out or treated differently, for one or more of the five Convention reasons, from anyone else charged with departing Sri Lanka illegally, or that there is any basis to find that he will come to the attention of the people in the army that he claims wish to harm him (which I have not accepted) or anyone else.

   [8] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 4.23.

9. The applicant then said that he felt that that if he went back to his home town he would be harmed. I explained that I needed to consider what would happen, rather than conjecture or surmise, and that the country information we had been discussing may lead me to consider that he would not face a chance of harm. I noted that if I came to the conclusion that country information does not indicate that people in a similar situation are harmed, I might take the view that he would not face a real chance or risk of harm. ON the basis of the information before me, and weighing his fear that if he returns to his home town he will be harmed, with the country information which does not indicate that failed asylum seekers, those charged with illegal departure, or members of village fishing committees are harmed, I do not accept that he will be harmed for the reasons claimed on return to his home town.

10. For the reasons given above I do not accept that, if [the applicant] returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his actual or imputed anti-government political opinion, his membership of his family, his membership of his mother’s family, as a member of the village fishers committee, his status as a returned asylum seeker and a person who departed illegally.  I have considered the totality of his circumstances as a Sinhalese fisher who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker.  However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm?

11. Having regard to my findings of fact above I do not accept that the applicant has ever been of interest to the Sri Lankan authorities or to a group of army officers because of his assault of an army officer at the fuel protest, his protesting or his membership of the fisheries committee or for any other reason.  I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm at the hands of the authorities for any reason.  While I accept that he attended the protest, was a member of the village fisheries committee and his mother has some role with the committee, I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for any of these reasons. 

12. Having regard to the advice of the Australian Department of Foreign Affairs and Trade discussed with him at hearing, and having regard to my findings of fact above I do not accept that 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 because he will be returning to Sri Lanka as a failed asylum-seeker.

13. As discussed with him at hearing, I accept that he will be charged with offences under the Immigrants and Emigrants Act of Sri Lanka because he left Sri Lanka illegally.  Having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be sentenced to a term of imprisonment for his illegal departure rather than simply being fined.  As I put to the applicant, the information available to me suggests that he will only be held in prison for a brief period, for example because a magistrate is not available due to a weekend or a public holiday, and in fact his response appeared to confirm this.[9] I have had regard to the DFAT assessment and to the relevant Departmental policy in relation to significant harm. Having regard to what I have found to be his circumstances, I consider that there is only a remote chance that he will have to spend any longer than a limited number of days in remand.  As I put to him, the Australian Department of Foreign Affairs and Trade assesses that the risk of torture or mistreatment for the majority of returnees is low.[10] Having regard to this assessment I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm or specifically that he will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, during any period which he may spend in jail on remand. Whilst I accept that prison conditions in Sri Lanka are poor I do not accept that spending a limited number of days in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons during any period which he may spend on remand.

    [9] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 5.32; ‘Sri Lanka: Asylum denied, a penalty waits at home’, Sydney Morning Herald, 8 December 2012, CX300741.

    [10] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 4.23.

1. I have considered the totality of his circumstances as a Sinhalese fisher who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. Taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

   CONCLUSIONS

2. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

   DECISION

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

   Sean Baker
   Member

   
   

   ATTACHMENT A - RELEVANT LAW

   1.In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.’

   Refugee criterion

   2.Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

   3.The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

   4.The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

   (a)  a threat to the person’s life or liberty;

   (b)  significant physical harassment of the person;

   (c)  significant physical ill-treatment of the person;

   (d)  significant economic hardship that threatens the person’s capacity to subsist;

   (e)  denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   5.In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

   ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

   6.‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

   ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

   7.Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

   8.Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

   ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

   9.A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

   ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   Complementary protection criterion

   10.An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has 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 context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

   11.In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

   Credibility

   12.As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

   ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

   13.As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

   ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

   14.If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.