1403552 (Refugee)

[2016] AATA 4978

1403552 (Refugee) [2016] AATA 4978 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1403552

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2016 at 12:43pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) – particular social group – family members of an LTTE member – returning asylum seeker – failed asylum seeker – religion – Hindu – destruction of temples – land confiscation – illegal departure – fear of torture – arrest and interrogation – rehabilitation programs for LTTE agents – monitoring by security forces – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 18 December 2012 and the delegate refused to grant the visa on 21 February 2014.

3. The applicant appeared before the Tribunal on 15 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by 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.

10. The applicant claims to be a citizen of  Sri Lanka who was born in [Village 1] [Town 1] in [District 1] on [date]. According to his protection visa application, he lived in [Village 1] from [birth] to January 2009. From January 2009 to April 2009 he lived in [another town] and [Town 1] and from April 2009 to November 2009 he was living in [a named] Camp in Vavuniya. The applicant resided in [another town] in Jaffna from November 2009 to March 2010, returning to live in [Village 1] from March 2010 until July 2012. He completed [number] years education and is fluent in Tamil. The applicant worked as a farmer on his family farm from January 2005 to June 2007. He worked as a labourer for a person named [name] from June 2007 to March 2009 and for a person named [name] from March 2010 to July 2012. The applicant departed Sri Lanka illegally [in] July 2012. The applicant’s [specified family members] are residing in Sri Lanka.

11. The applicant presented his claims in his protection visa application on 18 December 2012 (folios 27 to 52 and 65 to 68 of the Department file [number]), a Departmental interview he attended on 18 September 2013 (folio 110 of Department file [number]), submissions received by the Department and the Tribunal from the applicant’s adviser and at his Tribunal hearing on 15 March 2016. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Introduction - Citizenship

    1.I am a Sri Lankan Citizen by birth. I have no other citizenships and I am not entitled to a citizenship nor have I right to residence in any other country.

    2.       I am an ethnic Tamil

    3.I am Hindu and engaged. My fiancée remains in Sri Lanka to the present time.

    4.       I was born on [date]

    5.       I was born in [Town 1], [District 1] Northern Province, Sri Lanka

    6.My parents, [and specified family members] remain in Sri Lanka. I am concerned for all of their safety there

    The country to which I fear returning Sri Lanka

    7.       Sri Lanka

    Why I left that country

    8.Throughout my life, I have been denied my basic human rights and opportunities as I am of Tamil ethnicity.

    9.Also, the Sri Lankan government in recent times has introduced a programme where they are repopulating Tamil areas with Sinhalese. They are confiscating our family lands and giving said lands to the Sinhala to use.

    10.Furthermore, they are destroying our Temples, Mosques and Churches that impact on me being able to pray and follow my faith accordingly.

    11.I used to reside in [District 1] for over 25 years which was controlled by the LTTE.

    13.Then moved to Jaffna in November 2009 we went to Jaffna until March 2010 whence we returned to [District 1].

    14.Then in March 2012, I was stopped by the SLA taken to their camp and questioned about my association with LTTE. They released me after I stated I had no association with the LTTE. They told me that they would call me later.

    15.Then in June 2012, They SLA came to my home sought where I was from my mother. She told them I was at work. They requested that I attend their camp for further questioning. I did not comply with this directive.

    16.The SLA then came again to my home 2 days later and then took me to their camp. They interrogated me and tortured me during this period of time.

    17.They kept me a day and raised issues as I had lived in [District 1] for the majority of my life and the area had been under control of the LTTE.

    18.They released me after this they again said they would call me when they required to see me.

    19.The SLA then attended my home on 5 to 6 times, on each of these occasions they would interview me seeking further details about myself and whether I was going to work or not. They required me to be honest or they would instigate further ill treatment to obtain the truth.

    20.The SLA reached appoint that they threatened me with abduction in a white van.

    21.As I was aware that if this occurred the reality that I would face potential death and/or go missing my whereabouts remaining unknown to my family.

    22.I remained very fearful for my life that led to my departure from Sri Lanka for my own safety and life.

    23.I discussed this with my fiancée and family and was supported with my decision to leave the country.

    24.I contacted a smuggler in early July of this year, and paid 5 Lakhs to him to be assisted onto a boat here.

    25.I was placed on a boat in early July 2012 and remained on the boat for [number] days after being located at [a location] we were then escorted to and arrived at [a different place] [in] July 2012, then transferred to [specified detention centres].

    26.Then recently I received my Bridging Visa and travelled to [city], where I remain to the present time.

    What I fear may happen to me in Sri Lanka.

    27.I fear that the Police, CID, EPDP and SLA, will arrest and kill me on suspicion of my past, and perceived involvement with the LTTE and seek for me and take revenge against me.

    28.The potential of me being abducted and/or shot there as a Tamil remains my main concern.

    29.I have heard that I will be killed by those groups if I return to Sri Lanka because of this mentioned situation.

    Who I think may harm/mistreat me in Sri Lanka and why.

    30.I believe that the SL Police, CID, EPDP, and the SLA will harm and kill me if I return to Sri Lanka as they had sought me in relation to the mentioned issues.

    Do I think the authorities of that country can and will protect me and or my accompanying family members, where applicable, if I / we were to go back.

    31.      The authorities will not protect me because I am a Tamil.

    32.      The police are all Sinhalese and oppose the Tamils. They will not protect me.

    33.The Government comprises the EPDP, who were previously and remain seeking me and against my family.

    Do I think that there is a place in that country where I could be safe.

    34.I do not think that I will be safe in Sri Lanka because I am Tamil and The SLA perception of my involvement with the LTTE there.

    35.I cannot relocate anywhere there given that I am being sought by the mentioned groups including CID, EPDP et al.

    36.I truly believe that I will face ongoing threats from the Sri Lankan government and on this basis am fearful for my life and safety.

    37.I therefore seek asylum from the Australian Government to enable me to remain here and live safely.

    38. I cannot return as I fear the worst for my life from the mentioned groups associated with the Sri Lankan government.

    39.      I request asylum in Australia.

12. The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

14. The Tribunal accepts the applicant travelled to Australia by boat from Sri Lanka without a travel document but provided several documents identifying his name and place of birth, including copies of his national identity card and birth certificate. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.  

15. The applicant claimed in the hearing that he was suspected of supporting the LTTE because he had spent so much time in the Vanni area. He claimed the army came to his home in the Vanni and took him to their camp where he was kept for two days, during which he was tortured, and after two days they released him. The applicant claimed that the army then came to his home after he was released and his parents got really scared that they would do something untoward him. He claimed he was in hiding when he saw them so he knew that if he was taken again he was going to be persecuted so he left the place and asked a colleague for help and this person arranged for him to leave the country.

16. At the hearing, the Tribunal expressed its concern regarding the credibility of the applicant’s claims based on a number of inconsistencies in his evidence in relation to quite significant facts and the introduction of new claims during the hearing.

17. The Tribunal notes in the hearing it asked the applicant when he first had problems with the authorities and he claimed it was in June 2012. When asked what happened at that time, he stated that the army was investigating people who had been in the camps and they had come and taken him. In contrast, as the Tribunal highlighted in the hearing, the applicant had claimed in his detailed statutory declaration attached to his protection visa application, that in March 2012 he was stopped by the Sri Lankan Army (SLA) and taken to the army camp and questioned about his association with the LTTE. He claimed in his statutory declaration that he was released after he stated he had no association with the LTTE and was told that they would call him later.

18. When the Tribunal put the inconsistency in his evidence as to when he first had problems with the authorities to the applicant in the hearing, the applicant responded stating that he had mentioned that in June 2012 he was taken to the camp. While the Tribunal accepts that the applicant had mentioned in his statutory declaration attached to his protection visa application that he was taken to the army camp in June 2012, as the Tribunal noted during the hearing, he had claimed that this had happened after he had been taken to the camp in March 2012 and after a visit to his home in June 2012, when he was not there, and they requested he attend the camp for further questioning and he did not comply with this directive. According to the applicant’s statutory declaration attached to his protection visa application, the SLA came two days after this visit to his home in June 2012 and took him to the camp. As the Tribunal put to the applicant in the hearing, he had failed to mention anything during the hearing regarding any visit to his home when he was not there and the request to attend the army camp prior to allegedly being taken to the army camp.

19. Further, as the Tribunal put to the applicant, in the hearing he claimed that he was detained for two days when he was allegedly taken to the army camp in June 2012. However, in his statutory declaration attached to his protection visa application he claimed that he was kept a day when he was taken to the camp by the SLA. Also, while the applicant claimed in the hearing that he was released from the camp because his parents came there and wept and begged the superior officer to release him, there was nothing in his statutory declaration regarding his parents playing any role in his release from detention by the SLA.

20. The applicant claimed in the hearing following his release from the SLA camp in June 2012, a week later he saw and heard the SLA coming to his home and ran out the back door and hid in the jungle behind his house. He claimed after that visit he would only stay at his home at night time and after a week he went to his [relative’s] place in [Town 2] and stayed there. The applicant confirmed in the hearing that the only time he had contact with the authorities was in June 2012, when he was first taken to the army camp. However, as the Tribunal put to the applicant in the hearing, there was nothing in his statutory declaration attached to his protection visa application about him going into hiding when he heard and saw the SLA coming to his home or of him going to stay at his [relative’s] house in [Town 2] after this incident. In fact, in stark contrast to the applicant’s evidence in the hearing, he claimed in his statutory declaration that after he was released from spending a day at the army camp in June 2012, the SLA attended his home 5 to 6 times and on each occasion they would interview him seeking further details about himself and where he was going to work.

21. The Tribunal has considered the applicant’s response, when these concerns were put to him during the hearing, that he forgets the dates. The Tribunal notes that the problems identified in the applicant’s evidence are significantly more than discrepancies in dates but rather a different account of what he claims to be his personal experiences in Sri Lanka which allegedly motivated him to leave the country. The Tribunal finds the applicant’s account of his alleged contact with the authorities including his alleged period of detention at the army camp and what happened after he was released, to be entirely inconsistent with what he had previously claimed about these particular experiences. As such, the Tribunal finds that the applicant is not a credible witness and that his claims are not credible.

22. It therefore follows that the Tribunal does not accept that the applicant was taken to the army camp and questioned about his association with the LTTE in March 2012 or in June 2012, either because he had lived a long time in the Vanni or because he had been kept in a refugee camp as opposed to a detention camp when he and his family were displaced during the war. The Tribunal does not accept that the applicant was tortured or threatened by the SLA with abduction in a white van. Nor does it accept that there were any visits to the applicant’s home by the SLA asking about his whereabouts or that the applicant ever went into hiding. It therefore follows that it does not accept that during any of the visits made by the SLA to his home, his father was taken to the army camp and questioned. The Tribunal notes the applicant raised this particular claim for the first time during the hearing. Nor does the Tribunal accept that there were any visits to the applicant’s home during which the applicant was questioned by the SLA.

23. As the Tribunal does not accept that the applicant was ever of any interest to the authorities, it does not accept that after the applicant departed Sri Lanka, there were further visits made by the SLA or the CID to the applicant’s home in June 2013 and January 2016 enquiring about his whereabouts. The Tribunal does not accept the applicant’s evidence that the CID came to his home because their interest was triggered by them learning he had gone to Australia from his neighbours or for any other reason.

24. Based on the above, the Tribunal finds that the applicant was never of any interest to the authorities in Sri Lanka, including the SLA, the CID, the police, the EPDP or any other group. It does not accept that the applicant had any previous encounters at the hands of the security services of the Government of Sri Lanka and/or affiliated paramilitary organisations due to his suspected association with the LTTE based on either his Tamil ethnicity or because he had lived in an area controlled by the LTTE. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm, including being detained indefinitely and tortured due to his suspected links to the LTTE or for reasons of a real and/or imputed political opinion as a sympathiser or supporter of the LTTE or as someone seen to oppose the Sri Lankan government by holding Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka. 

1. The Tribunal notes according to the submission from the applicant’s adviser received by the Tribunal the day before the hearing, it was stated that the applicant fears persecution for reason of his membership of a particular social group of family members of an LTTE member. As the Tribunal put to the applicant in the hearing, there was nothing in his evidence, including during the hearing, to suggest that he had a family member who was a member of the LTTE or that he had any fear in relation to this familial connection with an LTTE member. Despite repeatedly asking the applicant during the hearing if there were any other reasons he feared returning to Sri Lanka or if there was any other information he wanted to provide, the applicant failed to raise this particular claim until the Tribunal asked him directly at the conclusion of the hearing if he had family members who were members of the LTTE. When the Tribunal did ask the applicant, he stated that he was reluctant to give this information “in his first case” and that his [Relative A] was in the LTTE movement.   The Tribunal asked the applicant why he was reluctant to give this information. He stated that he thought that there may be problems. When asked why he thought there would be problems, the applicant stated he did not raise this in the first interview because he thought there would be problems for him so he left it. In response to Tribunal’s question as to why he had mentioned it now, he stated it was because the Tribunal had asked him.  The Tribunal notes, while the applicant claimed during the hearing that it was his [Relative A] that was an LTTE member, according to the submission received from the applicant’s adviser the day before the hearing when this particular claim was raised for the first time, it states that the applicant had previously been the target of ongoing reporting, harassment, intimidation and threats of serious harm by the CID in Sri Lanka owing to his father’s links to the LTTE as a suspected fighter.

2. Given the applicant’s delay in raising the claim regarding his family member being a member of the LTTE, the applicant’s failure to refer to this himself during the hearing despite being asked repeatedly if there was any further information relevant to his claims or any other reasons why he feared returning to Sri Lanka and the discrepancy in the evidence before the Tribunal as to which family member of the applicant’s allegedly was a member of the LTTE, the Tribunal finds this claim is not credible and that it has been embellished in an effort to bolster the applicant’s case by creating a profile which may place him at risk of harm, on the basis of the independent information such as the UNHCR Eligibility guidelines which were cited by the applicant’s adviser in the submission. As such, the Tribunal does not accept that the applicant’s [Relative A] or his father, or any other member of his family, was a member of the LTTE, and that he faces a real chance of serious harm for reasons of his membership of a particular social group comprising family members of an LTTE member.

3. The Tribunal has taken into consideration the applicant’s evidence at the beginning of the hearing, when asked what he believes will happen if he returns to the Sri Lanka now, that the CID were frequenting his home now, asking for him, because they suspect him of supporting the LTTE on the basis that he did not go to the detention camp, like most of the people in the Vanni, but instead was in the refugee camp.  In response to the Tribunal’s question as to how him supporting the LTTE would have resulted in him being placed into a refugee camp as opposed to a detention camp, the applicant claimed that Vanni was under the control of the LTTE and he, his father and everyone there got employment from the LTTE, who were like a government to them, and the CID knew about this. When asked what employment he was given by the LTTE, the applicant stated that he did not do any work for the LTTE but they suspected they did work for the LTTE.

4. The Tribunal finds the applicant’s claim regarding the CID having suspicions that he was connected to the LTTE because he was placed in a refugee camp to be implausible. Rather, the Tribunal finds the fact the applicant and his family were not placed in a detention camp after the war had ended in May 2009, suggests that there were no suspicions about them being supportive of, or connected to the LTTE. The Tribunal finds the applicant’s evidence as to why the CID would suspect him to be nonsensical. It also finds his evidence regarding  the LTTE providing employment to everyone in Vanni, including him and his father to be internally inconsistent with his evidence that he did not do any work for the LTTE. The Tribunal notes the independent information it put to the applicant in the hearing from UNHCR, which recognised that given the LTTE controlled and administered 76% of what are now the northern and eastern provinces of Sri Lanka at the height of war, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives. The Tribunal also notes the information it put to the applicant in the hearing from DFAT which assessed that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, may be monitored by the Sri Lankan authorities but are at low risk of being detained and prosecuted.  While the Tribunal accepts on this information that there may be monitoring of some individuals, the Tribunal finds the applicant’s evidence regarding any interest in him by the CID, including a recent visit to his home in January 2016, unconvincing. The Tribunal therefore does not accept that the CID have come to the applicant’s home twice looking for him since his departure from the country. The Tribunal also does not accept based on the country information put to the applicant in the hearing and its findings that the applicant was not of any interest to the authorities in the past, that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because of his residence in an area which was formerly controlled by the LTTE.

5. The Tribunal notes the applicant’s evidence in the hearing that he fears returning to Sri Lanka mostly because of his Tamil ethnicity. The Tribunal has considered the country information it put to the applicant regarding the situation in Sri Lanka, particularly for Tamils.  The information suggests that the security and humanitarian situation has improved greatly since the end of the conflict in May 2009. While UNHCR in their guidance dated 2010 does refer to some reports that young ethnic Tamil men from the north and the east may be disproportionately affected by security measures on account of their suspected affiliation with the LTTE, they also stated that there was no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity.  In the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, the UNHCR indicated that not all Tamils from northern and eastern Sri Lankan are vulnerable to harm due to imputed links with the LTTE. They do state that people with “more elaborate links to the LTTE” may require protection. This includes persons who held senior positions with considerable authority in the LTTE civilian administration, former LTTE combatants or “cadres”, former LTTE supporters involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE, LTTE fundraisers and propaganda activists or persons with family links or who are dependent on or other otherwise closely related to persons with the above profiles. The information indicates that while Tamils face a degree of discrimination and an ongoing risk of low-level harassment, it would appear that it is only Tamils who are identified as having connections with the LTTE or in other ways opposed to the current Sri Lankan government who face a risk of serious harm in Sri Lanka and not Tamils generally.  The Tribunal does not accept that the applicant falls within any of the profiles identified by UNHCR as being at risk of serious harm.  The applicant’s evidence was that he did not have any involvement or association with the LTTE and as discussed above, the Tribunal does not accept that the applicant had any family members who were members of the LTTE.  

6. The Tribunal has also taken into consideration the guidance decision GJ v. Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) made by the Upper Tribunal (Immigration and Asylum Chamber) in the UK.  As the Tribunal put to the applicant in the hearing, according to this decision the government’s focus is now on preventing both the resurgence of the LTTE or any similar Tamil separatist organisation and the revival of the civil war within Sri Lanka, and as such the current categories of persons at risk of persecution or serious harm on return to Sri Lanka are individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka. According to the decision, in post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the authorities as indicating a present risk to the unitary Sri Lanka state or government. As the Tribunal put to the applicant in the hearing, looking at his profile and experiences, it does not accept he will be perceived as a present risk to the Sri Lankan state or government and as such this decision suggests he does not fall within the category of persons at risk of serious harm.

7. In regard to the security situation in the north, which is where the applicant is from, the Tribunal notes the information it put to the applicant from the recent DFAT report dated 18 December 2015, in which it was stated that the security situation in both the north and east had greatly improved since the end of the conflict. However, military and security forces maintained a significant presence in the Northern Provinces. According to the Government of Sri Lanka, the number of personnel has reduced by approximately 30 per cent since the end of the conflict, but there may be up to 70,000 Sri Lankan Defence Force troops and up to 15,000 civilian police still stationed in the north. In July 2015, DFAT observed a low-level but visible military presence in the north, with most of the military confined to the Security Forces Cantonment on Jaffna Peninsula, also known as the ‘High Security Zone’. Most check-points have been removed in the north, and the main checkpoint on the highway between the north and south, the Omanthai checkpoint, was removed on 29 August 2015. Restrictions placed on persons, including foreigners, visiting the north that were introduced in October 2014 have been lifted. The report provided that the Sirisena government had appointed two retired senior civil servants as Governors in the Northern and Eastern provinces to strengthen civilian administration. These posts were previously held by retired military personnel. The Sirisena government had publicly claimed that military involvement in civilian activities has ceased. The government has returned thousands of acres of land confiscated during the war by the military in the island’s east and north, has allowed 39 suspected former Tamil rebels, who had been in prison for years accused of abetting terrorism, to be released on bail and have decided to release another 20 to undergo rehabilitation and receive vocational training and had recently lifted a ban imposed by Rajapaksa on 8 Tamil organisations and 267 individuals who were accused of being a threat to national security.  DFAT assessed that there has been an overall decrease in monitoring in 2015, but some individuals in the north and east still report being questioned and observed by the military and report that the sizeable military presence remains a factor in aspects of civilian life. Further, it was stated that the cessation of the forced registration of Tamils suggested the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the conflict. DFAT assessed that monitoring and harassment of Tamils has decreased under the Sirisena government and on a day-to day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by the authorities, if such activities occur.

8. The Tribunal notes in response to the information put to the applicant in relation to the situation for Tamils in Sri Lanka, the applicant presented his mobile phone upon which he referred to an untranslated article. The Tribunal noted that it could not take into consideration untranslated material presented on a mobile phone and indicated to the applicant that if he wanted the Tribunal to have regard to this evidence, he would need to provide a copy of the article with translation. When asked what this article was about, the applicant stated that on 9 February 2016 the UN released information saying to date there is a lot of danger that Tamils face in the area. The applicant also referred to another news report which he stated reported that the Prevention of Terrorism Group had come on 12 February 2016 and had taken all the young Tamils in his area in a round up. Again, the Tribunal put to the applicant that if he wanted the Tribunal to take this report into consideration, he would need to provide a translated copy of the article. The applicant was given a week to submit the articles he referred to during the hearing however at the time of making this decision, the Tribunal had not received a copy of these articles or their translations. On the basis of the vague and limited evidence given by the applicant regarding these particular reports, the Tribunal is unable to determine its relevance to the applicant’s case or place any weight on this information.

9. The Tribunal finds that the country information before it, including information provided by the applicant’s adviser in both his recent submission to the Tribunal and the earlier submission provided to the Department, does not suggest that all Tamils face a real chance of suffering serious harm solely on account of their Tamil ethnicity, nor would it be assumed that all Tamils were connected with the LTTE. The Tribunal does not accept on the country information before it, and its findings that the applicant had not experienced any problems in the past because of his Tamil ethnicity or any suspected or perceived association with the LTTE, that the applicant would face a real chance of serious harm, now or in the reasonably foreseeable future, from the authorities including the CID, police, army or paramilitary groups such as EPDP or anyone else, if he returns to Sri Lanka because of his Tamil ethnicity, including being imputed with a political opinion of support for the LTTE, his real and/or imputed political opinion as a sympathiser or supporter of the LTTE or as someone seen to the oppose the Sri Lankan government by holding Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka or as a young Tamil male.

10. The applicant claimed in his statutory declaration attached to his protection visa application that the Sri Lankan government had in recent times introduced a programme where they are repopulating Tamil areas with Sinhalese and “confiscating our lands and giving said lands to the Sinhalese to use”. The Tribunal notes that there was nothing in the applicant’s evidence to suggest that his family’s land had been appropriated. The Tribunal does not accept on the information it put to the applicant from DFAT that the confiscation of land owned by Tamils is continuing. In fact, as discussed above, the government has returned thousands of acres of land which was confiscated during the war and at the time of the report over 1000 acres had been released. Although the Tribunal accepts that following the end of the conflict there was a very strong military presence in the North playing a dominant role in the reconstruction of the province and also, what was described as a slow but undeniable movement of Sinhala settlers into the fringes of the north, which was seen as a government policy to Sinhalise the north, the Tribunal does not accept on the country information before it that this policy has continued since the election of President Siresena or that it constitutes serious harm to the applicant within the meaning ofs.91R of the Act.  

11. The Tribunal noted in the hearing that it had also been claimed that the applicant would face harm as a failed asylum seeker and asked the applicant what he believed would happen if he returned to Sri Lanka for this reason. The applicant stated that he would have to go back to his home in the Vanni and when he does the CID or the army or terrorism prevention group as stated in the article he referred to, will come and arrest him and he does not know what will happen after that. When asked why the army, CID or prevention of terrorism group would want to arrest him, he stated mainly because he went to a foreign country and returned, they will suspect he was part of the LTTE.

12. The Tribunal has considered the information from DFAT it put to the applicant in the hearing, which noted that significant numbers of Tamils have been returned involuntarily to Sri Lanka and from other countries and the independent sources do not indicate that a returnee identified as someone who sought asylum in Australia or another western country, would face a real chance of serious harm.  According to DFAT, thousands of asylum seekers have been returned to Sri Lanka since 2009 including from Australia, Canada, US, UK and other European countries but there have been relatively few allegations of torture or mistreatment. DFAT assesses the risk of torture or mistreatment for the great majority of returnees is low including those suspected of offences under the Immigrants and  Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes including people smuggling or terrorism offences. It was reported that for returnees, police do undertake an investigative process to confirm a person’s identity which would address whether someone is trying to conceal their identity in relation to a criminal or terrorist background or to avoid amongst other things court orders or arrest warrants. A person is questioned during this period at the airport while their identity is checked and returnees are treated according to these standard procedures regardless of their ethnicity or their religion and those persons without an adverse profile are released at the airport without further interest. They have further assessed that people are not subjected to mistreatment during this processing at the airport.

13. While the Tribunal accepts that the applicant as a failed asylum seeker/returnee or Tamil failed asylum seeker/returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as someone who has no criminal record and has never been involved with the LTTE or assisted them in any way and the findings above that he had never been suspected of having any involvement with the LTTE, the Tribunal finds that the applicant would be released without further interest and he would not face a real chance of persecution as a failed asylum seeker/ Tamil failed asylum seeker or returnee/Tamil returnee or because of his extended presence in Australia as a failed asylum seeker.

1. Although the Tribunal notes, as it did in the hearing, that there are some reports, as cited in the submission from the applicant’s adviser, by human rights organisations such as Amnesty and Human Rights Watch, suggesting some examples of serious harm to returnees, these appear to be isolated examples where individuals have had particular adverse profiles such as criminal records or actual association with the LTTE. The Tribunal referred to the decision of the Upper Tribunal in which it was noted that the cases reported by organisations such as Human Rights Watch, Freedom from Torture and Tamils Against Genocide in their reports, as cited by the applicant’s adviser in their submission, were not representative and that the sample groups were small, distorted by its origin and unverifiable. The Tribunal also noted that evidence give to the Upper Tribunal from representatives of Human Rights Watch and Tamils Against Genocide was that they did not consider every Tamil returning to Sri Lanka was at risk.

2. The Tribunal does not accept on the evidence before it that the applicant has a profile which would be of any concern or interest to the Sri Lankan authorities. Considering the information put to the applicant in the hearing, as well as the information referred to in the written submissions from the applicant’s adviser, and the applicant’s profile as someone who was of no interest to the authorities and was not suspected of having links with the LTTE,  the Tribunal does not accept that the applicant faces a real chance of persecution on his return to Sri Lanka, now or in the reasonably foreseeable future, including being taken and tortured by police, as a failed asylum seeker, a failed asylum seeker who had spent a lengthy period of time in a Western country or a failed asylum seeker who departed the country illegally.

3. In regard to the applicant’s illegal departure from the country, the Tribunal notes in the recent DFAT report dated 18 December 2015, which was put to the applicant in the hearing, that people who departed Sri Lanka irregularly are questioned by police at the airport and are photographed. They are transported by police to the closest Magistrates court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time – for example, because of a weekend or public holiday –those charged may be held at a nearby prison.  DFAT was informed in July 2015 by Sri Lanka’s Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts can vary on a case-by-case basis and can be paid by instalments. Previous information provided by DFAT in their report dated February 2015 was that fines ranged between 5000 and 50,000 Sri Lankan rupees ($40-$400AUD). If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Looking at the applicant’s particular circumstances, if there was any such requirement, he has his [specified family members] in Sri Lanka who can stand as guarantor for him and there is nothing to suggest that they would not do so. The DFAT information goes on to say that if bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. There is no general requirement to report to police or a police station between hearings. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures.

4. Taking into consideration the information discussed above, in addition to the applicant’s particular profile, the Tribunal finds that the applicant may be held in remand for between a few hours and possibly a few days, depending on when he arrives in Sri Lanka. However, the Tribunal does not accept that any period the applicant is held in detention prior to being bailed constitutes persecution as it is the operation of a law of general application, as discussed below. The Tribunal also does not accept, given its findings regarding the applicant’s profile, that the applicant would face serious harm during any short period of detention prior to be being bailed. The Tribunal therefore does not accept on the country information, that the applicant would face extended administrative detention on his return to Sri Lanka or that he would face serious harm during the brief period he may be detained, depending on when he arrives in the country.

5. The Tribunal does not accept on the evidence before it that the applicant would not be in a position to pay a fine which may be imposed on him, particularly given that he has family members in Sri Lanka who could financially assist him. In light of the provisions of the law and its application to this date, which suggests that imprisonment does not happen in practice, the Tribunal finds the chances of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

6. The Tribunal refers to the country information, including in the recent DFAT report, which was put to the applicant in the hearing, that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant, this law is a national law and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

7. Based on the above, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally or because of his membership of a particular social group of Tamils who are subject to bail conditions and/or who are being prosecuted for a criminal offence or as a failed asylum seeker who departed the country illegally.

8. The Tribunal has also considered whether there is a risk of harm to the applicant after his release into the community and once he has returned to his home area. While the Tribunal accepts that there may have been situations where failed asylum seekers or returnees have been detained after leaving the airport or for people who have departed Sri Lanka illegally after being bailed, and returning to their home area, as indicated in the country information provided by the applicant’s adviser in their submissions, the Tribunal does not accept on the limited information regarding the profile of those who have been targeted, that the basis for the further interest in them was related to their profile as a failed asylum seeker or returnee or because of their illegal departure from the country.  Nor does the Tribunal accept that it can extrapolate from this information that the applicant would be subjected to similar treatment.  The Tribunal finds on the information provided that these appear to be isolated examples where individuals have had particular adverse profiles, including perceived or actual links with the LTTE or opposition to the current Government of Sri Lanka and does not suggest a real chance that such harm would come to the applicant as a failed asylum seeker/Tamil failed asylum seeker or returnee/Tamil returnee or because of his extended presence in Australia as an asylum seeker or because of his illegal departure from Sri Lanka.

9. The Tribunal has taken into consideration the applicant’s response that he finds it difficult to accept the information put to him as a person from here had returned to Sri Lanka recently and was taken to Negombo jail and then taken to [a location] and forced to sign documents. When asked how he learnt about this, the applicant stated that this was reported in the Tamil news. The applicant confirmed that he did not know this person. The Tribunal finds the applicant’s evidence regarding what allegedly happened to this person who returned to Sri Lanka to be vague and lacking in detail. On the limited information provided by the applicant regarding the profile of this person or the circumstances of his detention, the Tribunal does not accept that this particular case referred to by the applicant has any relevance to him and what will happen to him on his return to Sri Lanka.

10. Based on the information before it, the Tribunal accepts as possible that after the applicant is released from the airport or on bail and has returned to his village, there may be a follow up visit by the police or the CID to his home for a subsequent interview, however the Tribunal does not find such questioning or monitoring constitutes serious harm within the meaning of s.91R(1). Taking into consideration the Tribunal’s findings above and the applicant’s profile as someone who has not been of interest to the authorities in the past for any reason including for having suspected links with the LTTE, the Tribunal does not accept that the applicant faces a real chance of being detained once he is released in the community.

11. The Tribunal notes the applicant also raised during the hearing that he fears he will be harmed if he returns to Sri Lanka for reasons of his Hindu religion. The applicant claimed that ‘they’ have destroyed all the Hindu temples and are establishing Buddhist temples. The applicant confirmed he is a practising Hindu. The Tribunal put to the applicant that the information before it does not suggest that the Sri Lankan government or the authorities are destroying all the Hindu temples. The applicant responded that near his area they have constructed a Buddhist statute in a Hindu temple and this had also happened in another area. The applicant confirmed the Hindu temple was still there. When asked if he was able to practise his religion before he departed Sri Lanka, the applicant stated no. He explained that there were temples but he could not go because the army was monitoring the people and now they are destroying the temples and using the premises for Buddhist practice. The Tribunal asked the applicant from what point in time he was unable to go to the temple. He stated in 2009 when the war was over, the army took control of the places.

12. The Tribunal has serious concerns about the applicant’s claims regarding his inability to practise his religion in Sri Lanka. As the Tribunal put to the applicant in the hearing, there was nothing in his evidence prior to the hearing suggesting that he was not able to practise his Hindu faith in the past in Sri Lanka. Although he had claimed in his statutory declaration attached to his protection visa application that ‘they’ are destroying temples, mosques and churches and that impacts on his ability to pray and follow his faith accordingly,  the Tribunal notes that there was nothing in the applicant’s evidence before the hearing to suggest he was unable to go to the temple or was prevented from practising his faith, particularly for several years from the time the conflict ended in May 2009, as he claimed in the hearing. Given the delay in the applicant raising this particular claim, the Tribunal does not accept that the applicant was unable to practise his Hindu faith in Sri Lanka, either because he was prevented from attending the temple because of the military presence or because all the temples had been destroyed during the conflict (which appears to be inconsistent with the applicant’s own evidence).

13. The Tribunal has also taken into consideration the information it put to the applicant in the hearing from the DFAT report on Sri Lanka dated 18 December 2015 regarding religion in Sri Lanka.  According to the report, the Sri Lankan Constitution guarantees freedom of religion and belief while giving Buddhism a ‘foremost place’. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years imprisonment. Acts intending to insult religion are punishable by a fine and/or a maximum of one year imprisonment. Government dignitaries host and attend important events for different religions and Sri Lanka recognises religious holidays for all four religions. School students are able to study their choice of Buddhist, Hindu, Muslim and Christian religions in most public and private schools, depending on the availability of teachers. There are also public schools for Hindu and Muslim students. DFAT assesses there is little official discrimination on the basis of religion as there are no official laws or policies that discriminate on the basis of religion. It was also noted that in a 2013 report, the Centre for Policy Alternatives (CPA) listed 65 cases of attacks on places of worship throughout the country between May 2009 and January 2013. The majority of cases reported by CPA were against evangelical Christian churches. The Sirisena government has publicly said it is committed to ethnic and religious reconciliation. DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith freely. However, the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out ‘unethical conversions’ which generally involves a financial inducement to convert religion. In light of this information, the Tribunal does not accept that the applicant will be prevented from practising his Hindu faith if he returns to Sri Lanka, now or in the reasonably foreseeable future. Nor does the Tribunal accept that the applicant faces a real chance of serious harm for reasons of his religion if he returns to Sri Lanka, now or in the reasonably foreseeable future.

14. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the army, the CID, the police, EPDP, the prevention of terrorism group or any other authorities or anyone else because of his Tamil ethnicity or as a young Tamil male from the North or because of his real and/or imputed political opinion as a sympathiser or supporter of the LTTE or as someone seen to oppose the Sri Lankan government by holding Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka or his Hindu religion. Nor does the Tribunal accept the applicant faces a real chance of persecution because of his membership or the particular social groups failed asylum seekers;  failed asylum seekers who departed Sri Lanka illegally; failed asylum seekers who have spent a lengthy period of time in a Western country;  Tamils who are subject to bail conditions and/or who are being prosecuted for a criminal offence and family members of an LTTE member.  For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

    Complementary protection obligations

15. On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

16. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 Act.

17. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. For the reasons discussed above, the Tribunal does not accept that the applicant was of any interest to the authorities, including the army, the CID, the police or the EPDP because of his Tamil ethnicity or his perceived support for the LTTE because he had lived in the Vanni a long time or because he had been kept in a refugee camp as opposed to a detention camp or because he had a family member who was a member of the LTTE (which as discussed above, the Tribunal does not accept). It does not accept that the applicant was taken to the army camp and questioned about his association with the LTTE, tortured and threatened or that there were any visits to his home either before he left Sri Lanka or after he left the country enquiring about him. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from the army, CID, the police, EPDP or any other group as a perceived opponent to the government and/or supporter of the LTTE.

18. In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity or his membership of a particular social group of young Tamil males from the north or any combination of these factors.  The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within. The Tribunal finds that the neither the applicant or his family, including his [Relative A] or his father, had any links to the LTTE and it has found that he has not been suspected of having any links. The Tribunal has also taken into consideration the information before it regarding the conditions in the North of the country and the applicant’s claims related to land confiscation. While the Tribunal accepts that there was confiscation of land by the military during the war and for a period of time after the conflict ended, it does not accept that this practise is continuing now based on the information put to the applicant, particularly in relation to the government’s  return of large amounts of land which was confiscated during the war.

1. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above regarding the applicant’s profile, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the applicant may face would be for a short term, the Tribunal does not accept that this would constitute significant harm.

2. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty.

3. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.

4. The Tribunal is also not satisfied on the country information that there is a real risk the applicant would face significant harm on arrival in Sri Lanka or after his release into the community as a person who has failed to obtain protection in Australia or has lived in a Western country for a long period of time.  As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker or Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. It also accepts as possible that he may face further questioning and/or monitoring after being released into the community.  However, the Tribunal does not accept that the process of questioning or any surveillance of the applicant amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning or monitoring to which he may be subject to.

5. Based on the findings of the Tribunal above regarding the applicants past experiences in Sri Lanka and the country information discussing the situation for religious minorities in the country, including Hindus, the Tribunal finds that there are no 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 he will suffer significant harm as a Hindu.

6. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. 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

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

   Sydelle Muling
   Member