1402904 (Refugee)

[2015] AATA 3895

1402904 (Refugee) [2015] AATA 3895 (8 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1402904

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Rachel Homan

DATE:8 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 08 December 2015 at 1:50pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who the Tribunal finds is a citizen of Sri Lanka, applied for the visa [in] March 2013 and the delegate refused to grant the visa [in] February 2014.

3. The applicant appeared before the Tribunal on 30 October 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 applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

4. The issues in this review are whether the applicant has a well-founded fear of persecution in Sri Lanka for one or more of the five reasons set out in the Refugees Convention; and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.

5. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

6. 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.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Protection visa application

21. The visa applicant is a [age]-year-old male born in Tamil Nadu, India. In his visa application form, the applicant declared that he was a Sri Lankan national since birth and belonged to the Tamil ethnic group and Hindu religion. The applicant declared that the only language he could speak, read or write was Tamil. The applicant indicated that he had never been married.

22. In an attachment to his application forms, the applicant indicated that his father had died in [year] and his [family composition] all resided in [a town in] Chennai, India. The applicant indicated that prior to his mother’s remarriage, he used the surname “[father’s name]”, which was his biological father’s name.

23. The applicant declared that from the time of his birth until [year] he resided in [a certain town and district]. Between [year] and June 2012, he lived in different locations in Chennai. The applicant completed [number] years of education between [year] and [year]. From [year] until [year], the applicant was employed in [a specified] business as [occupation]. Between [year] and [year], he was employed as [occupation].

24. The applicant arrived in Australia by a boat identified as [Boat ID] as an irregular maritime arrival. The applicant declared that he departed by boat from [a town in] India [in] June 2012 without travel documents.

25. The applicant’s claims for protection were set out in a statutory declaration prepared with the assistance of an interpreter [in] February 2013.

26. According to his statutory declaration, the applicant is not a citizen of India and does not have a right to enter, reside in or apply for citizenship in India. The applicant claimed that his parents were both Sri Lankan nationals and he is also a citizen of Sri Lanka. The applicant claimed that his parents and siblings fled Sri Lanka during the civil war, prior to his birth. The applicant claimed to have lived his entire life in India as a refugee. The applicant’s father returned to Sri Lanka where he fought with the LTTE. The applicant’s father was killed in the civil war when the applicant was approximately [age] years old. The applicant’s mother remarried and continues to live in India with his stepfather.

27. The applicant claimed that he had lived his entire life in India in a refugee camp. Life for Tamil refugees in Indian refugee camps was incredibly restricted and he was required to seek the permission of the authorities in order to leave the refugee camp. The applicant claimed that Tamil refugees were badly mistreated in India, including by the Indian authorities and were denied basic rights.

28. The applicant claimed he had been physically abused by the Indian authorities on multiple occasions. The applicant claimed that he occasionally stood outside the camp smoking tobacco with his friends. Officers of the Indian crime branch used to patrol the area and would call the applicant and his friends “dogs”, threaten to fabricate charges against them and would often beat them up. On one occasion, the applicant spoke back to the officers and was taken to the police station and detained for two days. During those two days, the applicant was forced to work in the police station like a slave and sleep on a bicycle stand outside the station. Officers would regularly come to the applicant’s house and the houses of other Tamil refugees, use vulgar language and speak to them in a cruel and degrading way. The applicant claimed that he attempted to flee India in 2007 but was conned by a people smuggler. After repaying the debt he had accrued to pay the first people smuggler, the applicant made a second attempt to reach Australia in 2012.

29. The applicant claimed that he feared being killed or seriously physically harmed, tortured and/or subjected to cruel, inhuman or degrading treatment in Sri Lanka. Having spent his entire life in India, the applicant did not know much about Sri Lanka but had gleaned information from conversations with his mother, who was reluctant to speak about the past. The applicant stated that his mother originated from the Vavuniya district and did not know where his father’s family originated from. The applicant’s mother had told him that a civil war broke out between Tamils and Sinhalese due to racial and linguistic differences. The applicant’s father became involved in a militant Tamil group called the LTTE. Around the same time, he sent the applicant’s mother and siblings to India. The applicant’s mother had told him that his father died in the war but he was unsure how much information she had held back from him. The applicant’s mother had told him that it was not safe for his family to return to Sri Lanka because they are family members of a former LTTE fighter.

30. The applicant claimed to fear being harmed by the Sri Lankan authorities, former enemies of the LTTE and former affiliates of his father because of his Tamil ethnicity, membership of the particular social group of ‘family members of former LTTE fighters’, his membership of the particular social group his family and his imputed political opinion.

31. The applicant stated that his birth certificate clearly identifies his father and the applicant’s relationship to him. In the event he were to go to Sri Lanka, the applicant would need to obtain national identity documentation by showing his birth certificate. The applicant claimed to have no idea who his father’s enemies were or what activities his father had been involved in during the civil war. The applicant’s mother’s family live in India and the applicant does not know anything about his father’s family or how to contact them. The applicant claimed that he had no one in Sri Lanka to rely on for protection, support or information. The applicant also feared being detained and held in cruel, inhuman and degrading conditions by the Sri Lankan authorities and subjected to torture in detention.

32. Also on the Department’s file are the record of the applicant’s entry interview, which records the applicant’s claims in terms which are consistent with his statutory declaration; a Sri Lanka Refugees Identity Register; a Sri Lankan Refugee Identity Card issued by the government of Tamil Nadu to the applicant; and a birth certificate issued by the government of Tamil Nadu.

33. The applicant was interviewed by a departmental officer [in] September 2013 and the Tribunal has listened to a recording of that interview.

34. The applicant’s birth certificate was translated in the course of the protection visa interview as showing the applicant’s name and date of birth. The applicant’s place of birth is given as “[a specified refugee] Camp” and his parents are identified as [father’s name] and [mother’s name]. The applicant said to have stated that his biological father was [father’s name] and his stepfather is [applicant’s family name].

35. The applicant claimed that his parents were of Tamil ethnicity and originated from the Vavuniya district of Sri Lanka. The applicant claimed that in [year] his biological father, mother and [siblings] fled Sri Lanka when interracial violence between Tamils and Sinhalese escalated. The applicant was born in [the specified refugee] Camp and then moved with his family to “[another camp in] Chennai” in [year]. Around that time, the applicant’s father left India and returned to Sri Lanka to fight for the LTTE. The applicant claimed that his father died in the war when he was around [age] years old. The applicant’s father was shot and killed within two months of returning to Sri Lanka. The applicant had no specific knowledge of the circumstances of his father’s death but stated that his father returned to Sri Lanka to fight for the LTTE and was killed in the civil war. The applicant claimed to have no contact with any members of his father’s family and had tried on several occasions to make enquiries about his father, his involvement with the LTTE and the circumstances of his death. The applicant’s mother was reluctant to provide information about the applicant’s father and cried when he asked for information. The applicant had some contact or involvement with a group of people who he recalled seeing with his father as a child. The applicant claimed to have made enquiries of these people about his father on many occasions throughout his life but to no avail. The applicant claimed to have no support network in Sri Lanka.

36. The applicant’s representative made oral submissions at the departmental interview indicating that the applicant’s claims were as set out in his statutory declaration and were based on his Tamil ethnicity, imputed political opinion in support of the LTTE, and membership of a particular social group as a family member of a former LTTE fighter. The representative submitted that according to UNHCR guidelines, family members of former LTTE fighters still face an increased risk of persecution. The representative claimed that the applicant had asked his mother and other people who travelled to India with his parents about his father’s connections with the LTTE but they were unwilling to provide him with information. Upon return to Sri Lanka as a young Tamil male without documentation except for a birth certificate identifying his father, the applicant will be at risk of persecution. The applicant added that his father’s return to Sri Lanka after travelling to India with his family suggested that he was involved in fighting for the LTTE.

37. The delegate’s decision makes reference to written submissions made by the applicant’s representative after the protection visa interview indicating that as a Sri Lankan national who has never been to Sri Lanka, with no familial or social links in that country, the applicant would experience difficulty re-establishing himself in Vavuniya or any other part of Sri Lanka. Those submissions do not appear on the Department’s file and the applicant was alerted to this at the Tribunal hearing.

    Review application

38. The applicant has submitted to the Tribunal a further statutory declaration made [in] October 2015 addressing the delegate’s decision. The applicant expressed general disagreement with the findings of the delegate and stated that his family were forced to flee Sri Lanka due to problems in Sri Lanka at the time and because his father, according to his mother, was an LTTE fighter. The applicant’s mother told him that his father returned to Sri Lanka sometime in [year] or [year] to engage in combat against the Sri Lankan forces. The applicant does not know details about his father other than what has been provided at previous interviews. Several Sri Lankan Tamils who were detained in various Indian refugee camps with the applicant have told him that they knew his father and knew he was an LTTE fighter. The applicant’s mother had also told the applicant recently that his father had been interrogated and beaten severely by Indian Q Branch officers in the past. The applicant’s mother had also told him that the Sri Lankan Army came in search of his father whilst he was hiding in Sri Lanka prior to fleeing to India. The applicant stated that he does not have family members, friends or relatives in Sri Lanka at the present time. The applicant does not speak Sinhala and fears he would attract adverse attention due to his father’s previous involvement in the LTTE.

1. Immediately prior to the Tribunal hearing, the applicant submitted a copy of his Australian “ImmiCard” identification and four items of country information. The country information includes extracts from a September 2015 Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka; an article dated 29 October 2015 taken from TamilNet.com regarding the military presence in the North of Sri Lanka, including the occupation of land around Jaffna; a news item dated 29 October 2015 regarding the arrest of Tamils at Katunayake Airport; and a copy of a speech delivered in June 2014 at the Houses of Parliament, London on national security law in Sri Lanka.

   Tribunal hearing

2. The applicant provided oral evidence at the Tribunal hearing that was broadly consistent with his previous evidence. The applicant confirmed that he was born in [India] to parents of Sri Lanka nationality and Tamil ethnicity. The applicant identified as belonging to the Tamil ethnic group, Hindu religion and stated that he only understood the Tamil language. The applicant indicated that his parents had come from Vavuniya in Sri Lanka.

3. The applicant told the Tribunal that his [family members] all continued to reside in Chennai. The applicant stated that his mother’s siblings had also travelled to and remained in India. The applicant stated that neither his mother, biological father nor his stepfather had any relatives remaining in Sri Lanka.

4. The applicant told the Tribunal that the reason for his family’s departure from Sri Lanka was because his father was involved in the Tamil separatist movement. The applicant told the Tribunal that they had departed Sri Lanka in approximately [year]. The applicant indicated that his father returned to Sri Lanka after approximately [number] years. The Tribunal noted that there had been some discrepancy in the evidence with regard to the timing of his father’s return to India. The Tribunal noted that in his first statutory declaration, the applicant had indicated that his father returned to Sri Lanka after one or two years. The applicant repeated that it was his recollection that he was around [age] years old when his father returned to India. The applicant stated that he had memories of spending time with his father and photographs taken of him with his father.

5. The applicant denied having ever obtained an Indian passport or establishing permanent residency in India. The applicant was unsure whether he retained a right to enter and reside in India. The Tribunal put to the applicant that the country information before it indicated that if he had never regularised his status in India or obtained an Indian passport it was likely that his refugee status was lost upon departure from India and he would not have a right to return to India. The applicant expressed broad agreement with the information.

6. The applicant was similarly unsure whether he was, or had the right to be recognised as, a Sri Lankan citizen but indicated that he had always assumed that because his parents were Sri Lankan he was also a Sri Lankan.

7. The Tribunal discussed with the applicant information before it about the processes that failed asylum seekers undergo upon return to Sri Lanka. The Tribunal explained that the information indicated that involuntary returnees are processed at the airport by various law enforcement agencies, which typically takes several hours while the person’s identity and the existence of a criminal or terrorist background are checked. The Tribunal explained that the information indicated that all returnees are treated in the same way during this process regardless of their ethnicity or religion and they are not generally subjected to mistreatment during the period of processing at the airport.

8. The Tribunal explained that people who departed Sri Lanka illegally are generally charged with an offence under the Immigration and Emigration Act then taken before a Magistrate and generally granted bail whilst the charges against them are pending. Advice from the Department of Foreign Affairs and Trade indicated that no custodial sentences had been imposed upon those individuals arrested under the Act but they had received fines of varying amounts. The Tribunal indicated to the applicant that it did not appear that there was a real chance the applicant would be charged with an offence under the Immigration and Emigration Act because he had never been to Sri Lanka and therefore had not departed Sri Lanka illegally. The applicant suggested that he may be suspected of being a terrorist.

9. The Tribunal asked the applicant what he knew about his father. The applicant told the Tribunal that his father had been involved in the LTTE movement and the authorities had enquired about his father prior to their departure from Sri Lanka. The Tribunal asked the applicant whether he knew anything about his father’s particular role within the LTTE. The applicant indicated that his father was a fighter with the LTTE. The authorities had come looking for his father and his mother was also questioned, harassed and tortured about 5 to 6 months before they left for India. The applicant indicated that his mother had not told him anything much about her experiences in Sri Lanka or his father’s involvement in the LTTE. The applicant confirmed that he knew people in the refugee camp in India who had known his father. They had told him that his father was in the movement, and was a good person. The applicant told the Tribunal that when his father went back to Sri Lanka he took a group of [people] with him. The Tribunal sought to clarify whether the applicant understood that his father had led the group of [people] or simply travelled with them. The applicant indicated that he did not know.

10. The Tribunal asked the applicant whether he thought the authorities would be able to identify the applicant’s father as a former LTTE combatant. The applicant indicated that his parents could be identified from his birth certificate. The applicant also indicated that his stepfather was involved in the LTTE but would not discuss the matter with him so the applicant did not know anything about his role within the LTTE.

11. The Tribunal noted that at the conclusion of the civil war hundreds of thousands of Tamils had been detained and screened. Those identified as combatants had been taken for rehabilitation. The Tribunal noted that the applicant’s father would not have been identified through this process because he had already passed away. The Tribunal enquired whether the applicant thought there was any other record or evidence which would lead the authorities to the conclusion that his father was involved with the LTTE. The applicant responded that even if they had no evidence of his father, his mother could be identified. The Tribunal asked whether the authorities would have any evidence about his mother that would lead them to suspect that the applicant had links with the LTTE. The applicant responded that people had made enquiries of his mother many times. They had enquired about his father and tortured his mother. The applicant did not know whether his mother had played any role with the LTTE.

12. The Tribunal noted that there was country information before it which indicated that family members or people with close connections to LTTE combatants or wanted LTTE members were at some risk of harm and subjected to monitoring and interrogation. The Tribunal put to the applicant that the difficulty it was having was that the applicant only had very vague information about his father’s involvement with the LTTE and it was not clear how his father could be identified by the authorities now as having been involved with the LTTE. The applicant’s evidence did not suggest that his father had a high profile or held a leadership role of any kind. The Tribunal asked the applicant whether he had any reason to believe that his father was a high profile member of the LTTE. The applicant said he did not know but suggested that if his father was a normal person he would have no reason to leave his family and go back to Sri Lanka.

13. The Tribunal also put to the applicant that another issue it had to consider was whether, even if his father was identifiable as an LTTE combatant, the authorities would have any interest in the applicant, given that he was very young when his father died, the applicant had never lived in Sri Lanka, and he had not personally provided any assistance to the LTTE. The applicant responded that he did not know but said he could not live in Sri Lanka alone.

14. The Tribunal noted that the country information suggested the Sri Lanka authorities continued to have an interest in anyone they suspected might wish to involve themselves in separatist activities but indicated that it was not clear whether the authorities would hold any suspicions about the applicant. The applicant responded that they would suspect him because of his father’s involvement with the LTTE.

15. The Tribunal asked the applicant whether he thought there may be any particular risk to him or cause for suspicion arising from his period of residence as a refugee in India. The applicant indicated that people in the refugee camps may have been involved with the LTTE. The Tribunal noted information from the UNHCR that approximately 90,000 Sri Lankan refugees reside in the state of Tamil Nadu in India. The information also indicated that by 2012 more than 4500 refugees had returned to Sri Lanka from India. Vavuniya was one of the districts with the highest number of refugee returns. Upon arrival, returnees had been subjected to similar security interviews to those given to returnees from Australia but then generally allowed to proceed to their destinations. UNHCR had noted that returnees were subjected to continued monitoring and required to register with the local authorities. Most received visits from the police or military and some received more than one visit but the information did not indicate that returnees were subjected to harm. The applicant indicated that he had no information about the situation of refugees returning to Sri Lanka from India.

16. The Tribunal asked the applicant about the other kinds of difficulties he might have if he were to return to Sri Lanka. The applicant expressed a fear of having to live alone without family and his family in India’s inability to join him in Sri Lanka. The Tribunal commented that it was not immediately apparent how this constituted serious or significant harm.

17. The Tribunal also indicated to the applicant that there was information before the Tribunal that loan schemes and reintegration packages may be available to returnees or displaced people. The applicant asked how he would repay a loan. The Tribunal noted that the formal unemployment rate was around 5% which was less than in Australia and health care was generally free. The Tribunal noted that there seemed to be no reason why the applicant could not work to support himself. The applicant indicated that he did not know any language other than Tamil and asked whether he could find work as a Tamil speaker. The Tribunal noted that the country information indicated that there was a large population of Tamils in Sri Lanka and that Tamils were the second largest ethnic group. In the northern part of Sri Lanka, where the applicant’s family originated, Tamils accounted for approximately 90% of the population. The Tribunal commented that it was not clear that any language difficulties would amount to serious or significant harm. The applicant asked who would inform his family if anything happened to him.

18. The Tribunal noted that UNHCR had advised in the past that being Tamil or originating from the north of the country gave rise to a presumption of eligibility as a refugee but this was no longer the case. The Tribunal also noted that DFAT had acknowledged that there had been some allegations of torture or mistreatment made by Tamil asylum seekers who returned to Sri Lanka but verification of the allegations was not possible. DFAT had noted that the number of allegations was small yet thousands of asylum seekers had been returned to Sri Lanka since 2009. The Tribunal also noted that the country information indicated that there was some societal discrimination against Tamils but this was generally at a low level, although high profile LTTE members were likely to be at greater risk of discrimination within society. The Tribunal commented that it was not clear from this country information that the applicant would face a real chance of serious or significant harm in Sri Lanka. The Tribunal invited the applicant to comment or identify any other concerns he held for his safety. The applicant responded that if his father is identified at the airport it would be a problem for him.

19. The Tribunal asked the applicant whether there was anything further he wished to say or have the Tribunal take into account. The applicant indicated there was not. The applicant’s representative noted that the applicant had [scarring] and other marks on his [body]. The Tribunal asked the applicant about his scars. The applicant indicated that the scars were the result of accidents. The Tribunal asked the applicant whether he felt that he was at any greater risk of harm as a result of his scars. The applicant said he did not know. The Tribunal invited the applicant’s representative to make further submissions on the issue.

20. The applicant’s representative submitted that the applicant may be regarded as having departed Sri Lanka illegally because his mother was pregnant with him at the time she departed Sri Lanka illegally. The law was applied arbitrarily and returnees who had departed illegally had received different kinds of penalties for having breached the Immigration and Emigration Act.

21. The representative further submitted that the applicant may be suspected of having connections with the LTTE as a result of attributes other than his relationship with his father. He submitted that Sri Lanka had a very bad human rights record and weren’t solely focused on targeting separatists and that the applicant had other attributes that could lead to him being harmed. The Tribunal noted that it had discussed with the applicant his time in India, the area of the country his family originated from, his ethnicity, his family connections, his asylum application and his situation as a returnee. The Tribunal asked whether there were any other attributes that could lead to the applicant being harmed. The representative suggested that the process of interrogation the applicant faced could lead to harm because of his age and his ethnicity. The representative also noted that the applicant had no family or relatives to vouch for him in Sri Lanka. The Prevention of Terrorism Act was still in place and there was a real chance the authorities could torture the applicant. The representative also noted that the applicant did not speak Sinhalese and only spoke Tamil. The representative suggested that the applicant may be perceived to come from a family with the LTTE links because his family had chosen not to return to Sri Lanka from India. The representative claimed that the applicant’s attributes had to be considered cumulatively. The representative further noted that the situation in Sri Lanka had not changed and the country information he had submitted highlighted this point.

22. The Tribunal discussed some of the points made by the representative with the applicant further. With regard to scarring, the Tribunal noted that the country information indicated that in the past scarring had been used as a method of identifying LTTE combatants, but that information from the UK Home Office had indicated that this practice had ceased or was used less frequently. Unless there was some other reason to suspect that a person had been involved in fighting for the LTTE, Sri Lankan authorities no longer appeared to be looking for scars. The Tribunal noted that the applicant’s scars were [visible] and indicated that it would take this into account but asked the applicant whether he had any further comment on whether he was at greater risk of harm because of his scarring. The applicant responded that the scars would lead the authorities to suspect that he was involved in fighting with the LTTE.

23. The Tribunal also noted that the applicant’s representative had submitted that the applicant’s age was a risk factor. The Tribunal commented that given that the applicant was still a teenager when the conflict ceased it was not immediately apparent that this alone would give rise to any suspicion that he had been involved with the LTTE. The applicant indicated that he had no comment on this issue. The Tribunal asked the applicant’s representative whether he wished to make any further submissions on this issue. The representative submitted that the LTTE were recruiting towards the latter stages of the war and said the applicant’s age did give him a profile that would place him at risk when combined with his other attributes. The Tribunal noted that the applicant had not in fact ever been in Sri Lanka and his birth certificate confirmed this, so it was impossible that he could have been involved in any fighting during the war. The representative suggested that there may be some doubt as to whether the applicant could communicate successfully to the authorities that he wasn’t born in Sri Lanka and had never lived there.

24. With regard to the lack of any family to vouch for him, the Tribunal acknowledged that this raised the question of whether this would lead to a prolonged investigation or exposure to the authorities upon arrival, thus increasing the potential for harm. The Tribunal asked whether the applicant had anything further to add in relation to this issue. The applicant agreed that the authorities could question him for a long time.

25. Following the Tribunal hearing, the Tribunal received a brief submission from the applicant’s representative alerting it to a recent judgement of the Federal Circuit Court and noting that the applicant did not have any family member able to provide a surety if the applicant is arrested or remanded upon arrival in Sri Lanka for reasons of having departed illegally or for any other reason.

    Country information

26. The DFAT Country Report for Sri Lanka indicates that Tamils are the second largest ethnic group, representing 11.2% of the population. Sri Lankan Tamils are characterised by their Tamil language and the majority of Tamils are Hindus. According to the 2012 Census, 43% of Sri Lankan Tamils resided in the Northern province and 14.8% resided in the Western province.[1]

    [1] DFAT Country Report – Sri Lanka, 16 February 2015 at 2.8

27. The Sri Lankan Constitution provides that no citizen should be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds[2]. Although most Sri Lankans live alongside members of their own ethnic groups, in major urban areas, ethnic groups live in close proximity to each other. Colombo is highly integrated with roughly equal populations of Sinhalese, Tamils and Muslims.[3] Overall, DFAT assesses that there are no official laws or policies that discriminate on the basis of ethnicity or language including in relation to access to education, employment or housing. DFAT further assesses that there is only a low level of discrimination in the implementation of laws and policies. There is a moderate level of discrimination between particular ethnic groups, largely as a result of the civil conflict.[4]

    [2] DFAT Country Report – Sri Lanka, 16 February 2015 at 3.1

    [3] DFAT Country Report – Sri Lanka, 16 February 2015 at 3.2

    [4] DFAT Country Report – Sri Lanka, 16 February 2015 at 3.5

28. DFAT reports that, partly as a result of recent public investment in infrastructure, the formal unemployment rate in Sri Lanka fell from 5.8 per cent in 2009 to 4.5 per cent in the second quarter of 2014[5]. Public health care is generally free. There is a high life expectancy and low infant mortality rate, comparable to the rates in developed countries[6]. The security situation has generally improved since the end of the conflict. No terrorist or large scale military attacks have occurred since the end of the conflict. Sri Lankan military, intelligence and police forces exercise effective control over the entire country[7].

    [5] DFAT Country Report – Sri Lanka, 16 February 2015 at 2.23

    [6] DFAT Country Report – Sri Lanka, 16 February 2015 at 2.29

    [7] DFAT Country Report – Sri Lanka, 16 February 2015 at 2.33

1. The security and humanitarian situation in the north has greatly improved since the end of the conflict. The main highway has been repaired and railway and ports link the north to the rest of the country. This in turn has helped reduce the cost of transport and basic goods. The military and security forces maintain a significant presence in the Northern Province including the Vavuniya District. The number of military personnel has, however, been reduced by 30% and the government has commenced discussions on progressively reducing High Security Zones.[8]

   [8] DFAT Country Report – Sri Lanka, 16 February 2015 at 2.37-2.39

2. During the civil conflict between the Government and LTTE, which began in 1983 and lasted until May 2009, more Tamils were detained under emergency regulations and the Prevention of Terrorism Act 1979 than any other ethnic group[9]. LTTE support was, at times, imputed on the basis of Tamil ethnicity. Forced registration of Tamils has, however, now ceased, suggesting that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict.[10]

   [9] DFAT Country Report – Sri Lanka, 16 February 2015 at 3.10

   [10] DFAT Country Report – Sri Lanka, 16 February 2015 at 3.12

3. According to the 2010 United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines[11], due to the improved human rights and security situation there was ‘no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’. The 2012 Eligibility Guidelines[12] state that the risks facing certain individuals require particularly careful examination. Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists, and persons with family links or who are dependent on or otherwise closely related to such persons.[13]

   [11] UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 5 July 2010, HRC/EG/SLK/10/03, available at: 24 July 2015]

   [12] 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, available at: 24 July 2015]

   [13] 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, available at: 24 July 2015] at p. 26

4. The DFAT Country Report states that Sri Lanka’s Constitution entitles any citizen to the freedom to return to Sri Lanka[14]. Under the Immigrants and Emigrants Act, it is an offence to depart other than via an official port of entry or exit. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to 5 years and a fine of up to 200,000 Sri Lankan Rupees.[15] Returnees are generally considered to have committed an offence if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport.[16]

   [14] DFAT Country Report – Sri Lanka, 16 February 2015 at 5.22

   [15] DFAT Country Report – Sri Lanka, 16 February 2015 at 5.22

   [16] DFAT Country Report – Sri Lanka, 16 February 2015 at 5.23

5. Upon arrival in Sri Lanka, involuntary returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service and Airport Criminal Investigations Department.[17] Officers check travel document and identity information and returnees are checked against intelligence databases.[18] Most Sri Lankan returnees from Australia are questioned by police on return and where an illegal departure is suspected, are charged under the I&E Act. In most cases, these individuals are arrested by police at Colombo International Airport. In March 2014, DFAT was informed by Sri Lanka’s Attorney General’s Department that no returnee had been given a custodial sentence for departing Sri Lanka illegally but fines had been issued to act as a deterrent towards boat ventures in the future. In most cases, returnees have been granted bail with the requirement for a family member to act as guarantor.[19]

   [17] DFAT Country Report – Sri Lanka, 16 February 2015 at 5.24

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

   [19] DFAT Country Report – Sri Lanka, 16 February 2015 at 5.28

6. The DFAT Country Report states that a small number of allegations of torture or mistreatment have been made by asylum seekers who have been returned to Sri Lanka. Verifying the allegations is complicated by the fact that they may have been made anonymously, often to third parties. However, there have been thousands of asylum seekers returned to Sri Lanka since 2009 and relatively few allegations of torture or mistreatment. DFAT assesses that the risk of torture or mistreatment of returnees was greater for those who are suspected of committing serious crimes, including people smuggling or terrorism offences, because of their greater exposure to authorities on their return.

7. The country guidance case decided by the United Kingdom Upper Tribunal in GJ & Others (post –civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (5 July 2013), which was upheld by the Court of Appeal, found that the Sri Lankan government was trying to identify Tamil activists in the diaspora who were working for Tamil separatism and to destabilise the unitary Sri Lankan state. The Tribunal did not accept that all Tamils were at risk on return to Sri Lanka (paragraph 337).

8. The UK Home Office’s July 2013 operational guidance note on Sri Lanka states that:

   As regards “scarring” the British High Commission (BHC), Colombo observed in the letter of 5 January 2012: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. Contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.”[20]

   [20] UK Home Office 2013, Operational Guidance Note: Sri Lanka (July 2013), 1 July < Accessed 25 August 2014 <CIS29708>

9. Frontline India reported in October 2015 that about 300,000 Tamils fled Sri Lanka and took refuge in Tamil Nadu in four phases following the anti-Tamil violence in 1983. More than 200,000 refugees have gone back. In a letter to Prime Minister Narendra Modi in January 2015, O. Panneerselvam, who was Chief Minister then, said there were 102,055 refugees belonging to 34,524 families in Tamil Nadu. According to the October 9 issue of Sri Lanka’s Island newspaper, between 2002 and 2014, as many as 12,500 Tamil refugees returned to Sri Lanka[21].

   [21] CXBD6A0DE15133: "Now here and nowhere", Frontline (India), 28 October 2015, >

   The government announced in 2011 that refugees returning from Tamil Nadu, including children born in refugee camps would be given Sri Lankan nationality and relevant identification documentation upon return.[22]

   [22] CX275629: "Citizenship for Lankan refugees - Karuna", Sunday Leader, The, 30 October 2011, >

   All returnees under the UNHCR facilitated voluntary repatriation programme undergo a questioning session by Immigration Officials for one to two hours upon arrival, followed by security interviews by the State Intelligence Service (SIS), which can take from 30 minutes to five hours. UNHCR is not permitted to remain in the interview room during this process, but waits for the returnees outside the room. Individuals have been allowed to proceed from the security interviews to their destinations. UNHCR provides return and reintegration assistance, including support with onward transportation from the airport to home areas, a reintegration grant, and on-going protection monitoring post-return. [23]

   [23] "UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka", UN High Commissioner for Refugees, 21 December 2012, UNB0183EA8

10. A press release issued by UNHCR in May 2014, states “UNHCR is encouraged by the positive outlook of the Government of Sri Lanka towards the refugee returnees and is ready to extend our fullest cooperation in addressing refugee returnee related matters.” The press release indicates that UNHCR staff meet refugee returnees at the airport and facilitates their immigration, security and customs formalities. In addition, UNHCR in cooperation with the Bank of Ceylon deposits a reintegration grant and monetized NFI assistance intended for initial reintegration, such as purchasing household goods or repairing damaged housing, etc. on returnees’ newly opened bank accounts. All returning refugees are also provided with a transport grant to help them to travel from the airport to their areas of origin in dignity. Once settled, returnees are advised to register with the UNHCR field offices for monitoring and referral purposes. UNHCR refers persons with special needs (e.g. persons with disabilities and elderly persons) to specialized institutions. Similarly, UNHCR refers those in need of legal counselling, civil documentation support, livelihood and education assistance to the relevant government authorities or other organizations that can provide targeted assistance. UNHCR have assisted more than 92,000 Sri Lankan refugee returnees since the inception of its voluntary repatriation programme in 1987. Thus far most refugees have been returning to the Northern District of Mannar, followed by, Vavuniya, and Jaffna in the Northern Province and Trincomalee District in the Eastern Province of Sri Lanka. [24]

    [24] "Ministry of Resettlement, Reconstruction and Hindu Affairs and UNHCR welcome Sri Lankan refugee returnees from India", UNHCR Sri Lanka, 13 May 2015, CISEC96CF1877 

11. UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military. There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.

12. The International Organisation for Migration (IOM) assists and facilitates the voluntary return of Sri Lankans – failed asylum seekers, stranded and irregular migrants – from the European Union, Australia and en route countries. IOM offers a wide range of services including:

    ·     Pre-departure logistical arrangements: information outreach, assistance with travel arrangements, escort assistance to vulnerable returnees and transit support,

    ·    On arrival assistance: airport assistance, onward transportation and medical escort, and

    ·     Reintegration assistance: Training including business development, vocational and on the job, small scale business set up, job placement and referral services.

    In addition, the programme also supports community infrastructure development in selected returnee receiving areas.[25]

    [25] International Organization for Migration 2013, Sri Lanka – International Organization for Migration, November, p.6 < Accessed 28 August 2014 <CIS29741>

    Findings

13. The Tribunal finds that the applicant is a national of Sri Lanka. Although the applicant was born in India, he has denied ever obtaining an Indian passport or establishing permanent residency there. The applicant claimed that his parents were Sri Lankan citizens and he has always assumed that he is also a Sri Lankan citizen. The Tribunal notes that the applicant’s identity documents include a Sri Lankan Refugee Identity Card issued by the government of Tamil Nadu and a Sri Lankan Refugees Identity Register. The applicant’s birth certificate names his parents. Section 5 of the Sri Lankan Citizenship Act No.18 of 1948 states that any person born outside of Sri Lanka whose mother was a citizen of Sri Lanka at the time of his birth shall be eligible for citizenship. The country information referred to above indicates that the Sri Lankan government is willing to recognise the citizenship of, and provide identity documents to, children of Sri Lankan refugees born in refugee camps in India. Accordingly, the Tribunal is satisfied that Sri Lanka is the applicant’s country of reference and receiving country for the purposes of this application.

14. Although the Tribunal accepts that the applicant has provided generally credible evidence about his circumstances, it remains unsatisfied on the evidence before it that there is a real risk or chance of the applicant suffering serious or significant harm in Sri Lanka.

15. The Tribunal accepts that the applicant is of Tamil ethnicity and Hindu religion and that his parents came from Vavuniya in the Northern Province of Sri Lanka. The Tribunal accepts that the applicant’s immediate family members including his mother, stepfather and siblings continue to reside in India. The Tribunal is also prepared to accept the applicant’s claim that he is not aware of any extended family members still residing in Sri Lanka.

16. The Tribunal accepts that the applicant’s family departed Sri Lanka in approximately [year]. Although there has been some discrepancy in the evidence with regard to the timing of the applicant’s father’s return to Sri Lanka, the Tribunal is prepared to accept that he did return to Sri Lanka between one and [number] years after the applicant’s birth and died shortly thereafter.

17. The applicant was able to provide only limited information about his father’s connections with the LTTE. The applicant has no direct knowledge of his father’s circumstances and has relied on information provided to him by his mother, stepfather and other people in the refugee camp in India where he resided. The applicant indicated that his mother and stepfather were unwilling to discuss their or his father’s experiences in Sri Lanka with him.

18. While the Tribunal is not satisfied on the evidence that the applicant’s father was in fact an LTTE combatant as claimed, the Tribunal is unable to discount this as a remote or far-fetched possibility. The fact of his father’s return to Sri Lanka during the period of the conflict and the Tribunal’s view that the applicant has provided broadly credible evidence about what he has been told about his father, both point to this conclusion. Accordingly, the Tribunal has considered the applicant’s circumstances upon return to Sri Lanka on the basis that his father was an LTTE combatant who was killed in the course of the conflict in the early to mid-1990s.

19. The Tribunal is not satisfied on the evidence before it that the applicant’s father was a high profile LTTE combatant or held a senior position within the LTTE. As put to the applicant at hearing, the Tribunal considers that if his father had held such a role, the applicant would have access to more information about his father’s circumstances. Although the applicant did claim at the Tribunal hearing that when his father went back to Sri Lanka he took a group of [people] with him, upon further clarification, the applicant indicated that he was unsure whether his father had led the group or simply travelled with them.

20. It remains unclear whether the applicant’s father would be readily identifiable to the Sri Lankan authorities as a former LTTE combatant now. General information available to the Tribunal indicates that over the course of the conflict in Sri Lanka, tens of thousands of people were killed and hundreds of thousands of people displaced. The applicant has claimed, without providing any significant details, that his parents were questioned and harassed and tortured before their departure for India. Although the Tribunal considers the possibility that the applicant’s father would be identified as a former LTTE combatant to be low, it cannot find with confidence that the Sri Lankan authorities would not be aware of this information and has proceeded on the basis that the applicant’s father would be identifiable in this way.

21. The Tribunal accepts that upon return to Sri Lanka, the applicant would be questioned and checked at the airport in a process that could take several hours. The Tribunal is not satisfied on the information before it that the applicant would be charged with having departed Sri Lanka illegally given that the evidence, including the applicant’s own birth certificate, indicates that he was born outside Sri Lanka and has never previously entered Sri Lanka. The Tribunal considers the applicant’s representative’s submission that the applicant may be regarded as having departed Sri Lanka illegally on the basis that his mother was pregnant with him at the time of her own illegal departure from Sri Lanka to be far-fetched. The Tribunal is not satisfied on the information before it that there is a real chance or risk that the applicant would be charged with any other criminal offence upon arrival in Sri Lanka.

22. Even if the Sri Lankan authorities were aware that the applicant’s father fought with the LTTE and died in the course of the conflict, the Tribunal is not satisfied that this would expose the applicant to a real chance or risk of serious or significant harm now or in the reasonably foreseeable future. Whilst UNHCR have advised that family members of former combatants may require a protection, depending on the specifics of the individual case, the country information generally suggests that the Sri Lankan authorities’ present interests lie identifying those working for Tamil separatism and to destabilise the unitary Sri Lankan state. Given that the applicant’s father died some [years] ago, the Tribunal is not satisfied that there is a real chance or risk that the Sri Lankan authorities would perceive him as posing a present threat. Although the applicant has suggested that his mother was of interest to the Sri Lankan authorities prior to her departure for India, this occurred at a time when the applicant’s father was still alive. The applicant has also suggested that his stepfather may have had some involvement with the LTTE but was unable to provide the Tribunal with any meaningful information as to the nature of his involvement.

23. The Tribunal finds that on presentation of his identification documents, including his birth certificate, it would be apparent to the Sri Lankan authorities that the applicant has never resided in Sri Lanka. If they are aware of the applicant’s father’s death, it would be apparent that he died when the applicant was a very small child. If not, the Tribunal is not satisfied that the applicant would be unable to convey this information to the authorities upon questioning. The applicant has not claimed to have had any personal interest or involvement with the LTTE or the Tamil separatist movement nor has he claimed that his mother or stepfather or any other member of his family has had any personal interest or involvement with the LTTE or the Tamil separatist movement since their arrival in India more than 20 years ago.

1. The Tribunal has considered whether anything else in the applicant’s profile, considered individually or cumulatively would arouse the Sri Lankan authorities suspicion or lead to prolonged interrogation or exposure to the Sri Lankan authorities either immediately upon his arrival in Sri Lanka or at any later point in time. The Tribunal accepts that in addition to his father’s connection with the LTTE, the applicant’s profile consists of being a young, Tamil, male whose family originated from the North, whose family fled Sri Lanka during the conflict and have remained outside of Sri Lanka, who has unsuccessfully sought asylum in Australia and who has some scarring on his face and arms.

2. The Tribunal accepts as credible information from UNHCR that simply being of Tamil ethnicity and originating from an area formerly controlled by the LTTE no longer, of itself, gives rise to a need for protection. Whilst there is some country information indicating that scarring was used as a means of identifying former combatants in the immediate aftermath of the conflict, there is no recent information to suggest that scarring is still used as a basis for detaining and interrogating Tamils. The information indicates that thousands of Tamils left Sri Lanka in the course of the conflict and some 100,000 Sri Lankan refugees have remained in India for a variety of reasons. The country information suggests that thousands of Sri Lankan refugees have safely returned to Sri Lanka from India, a large number of them to the area from which the applicant’s family originated, and that their return is actively encouraged and facilitated by the Sri Lankan government. Similarly, thousands of asylum seekers have returned to Sri Lanka from Australia since 2009, with only a few allegations of torture of mistreatment. The applicant is in possession of documentation which clearly indicates that he was born outside of Sri Lanka and there would be no record of him ever having lived in Sri Lanka. In all the circumstances, the Tribunal is not satisfied that there is a real chance or risk that the applicant will be perceived or genuinely suspected of having any personal connection with the LTTE or the Tamil separatist movement, or be of any interest to the Sri Lankan authorities for any other reason. The Tribunal is not satisfied that the applicant has a profile that would lead to a real chance or risk of him suffering serious or significant harm in Sri Lanka now or in the reasonably foreseeable future.

3. As discussed with the applicant at hearing, the country information indicates that in the course of processing at the airport, returnees are treated in the same way regardless of their ethnicity or religion are not generally subject to mistreatment. The Tribunal is not satisfied on the information before it that being subjected to this type of questioning and checks upon arrival in Sri Lanka gives rise to a real risk or chance of the applicant suffering discriminatory or intentional mistreatment amounting to serious or significant harm. Similarly, the Tribunal is not satisfied on the information before it that there is a real chance or risk of the applicant suffering serious or significant harm in the course of any continued monitoring or registration after his arrival.

4. The Tribunal does accept that the applicant may be unwilling to resettle in Sri Lanka and may experience some difficulty establishing himself in that country as a consequence of having never lived there and his lack of family support. The Tribunal finds, however, that the applicant is a young person of working age who has worked in Australia and India. The applicant speaks the Tamil language, which is the only language spoken by a significant proportion of the Sri Lankan population. The country information suggests that there is only a low level of societal or official discrimination against Tamils. Having regard to the general country information regarding the economic and security situation in Sri Lanka and the availability of health care, as well as the evidence that substantial assistance is provided to returnees by the IOM and UNHCR, the Tribunal is not satisfied that any difficulties the applicant would experience establishing himself or continuing to live in Sri Lanka would amount to serious or significant harm.

5. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka. For this reason, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  The applicant does not satisfy the criterion set out in s.36(2)(a). The Tribunal further finds that there are not 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. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Rachel Homan
   Member